United States v. Riley

• Decision Date: 02 December 2021
• Docket Number: CRIMINAL ACTION NO. 20-205
• Citation: 574 F.Supp.3d 248
• Parties: UNITED STATES of America v. Zyaire RILEY Register# 70007-066
• Court: U.S. District Court — Eastern District of Pennsylvania

574 F.Supp.3d 248

UNITED STATES of America

v.Zyaire RILEY Register# 70007-066

CRIMINAL ACTION NO. 20-205

United States District Court, E.D. Pennsylvania.

Filed December 2, 2021

Thomas M. Zaleski, Assistant US Attorney, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Andrew C. Moon, Catherine C. Henry, Public Defenders, Federal Community Defender Office, Philadelphia, PA, for Zyaire Riley.

OPINION

WENDY BEETLESTONE, District Judge Defendant Zyaire Riley, a felon previously convicted of first-degree robbery in Pennsylvania, pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and now faces sentencing for this crime. Defendant challenges the applicability of three sentencing enhancements sought by the Government, specifically: (1) an upward adjustment for possessing a firearm with an obliterated serial number; (2) an upward adjustment for using a firearm in connection with another felony offense; and finally, (3) an upward adjustment for his prior robbery conviction, which the Government argues is a crime of violence under the Sentencing Guidelines. On November 18, 2021, a hearing was held in which the Government presented evidence on the first two issues in the form of police investigation reports, security camera footage, and credible testimony from Special Agent James C. Hughes of the Bureau of Alcohol Tobacco and Firearms.

For the reasons explained below, in calculating the offense level the Court will not apply an enhancement for either an "obliterated" serial number or for the use of a firearm in connection with another felony offense, but it will include an enhancement for Defendant's prior robbery conviction.

I. BACKGROUND¹

On December 23, 2019, Defendant Zyaire Riley was apprehended by Philadelphia Police officers while fleeing from a traffic stop. Officers recovered a Smith & Wesson 9-millimeter semi-automatic firearm bearing a heavily scratched serial number covered in green paint from his left sock. The firearm was submitted to the Firearms Identification Unit ("FIU") of the Philadelphia Police, which "raised" the serial number and determined it to be "EEB4799." At the hearing, the Government could not clarify what was meant by "raising" a serial number and whether the FIU physically manipulated or otherwise made the serial number more legible. The Government admitted into evidence a laboratory report by the FIU which describes that its methodology involved "[a] visual and physical examination." Presently, it is possible to make out the entire serial number "EEB4799" by sight, albeit with some difficulty.

Three days prior to his arrest, on December 20, 2019 at approximately 8:24 p.m., Defendant went with two women, one of whom is his cousin, to the "Ice-Cold Beer Deli" ("Deli") located at the corner of 58^th and Catherine Streets in Philadelphia, Pennsylvania. Defendant wore a bright yellow hoodie, a black jacket and a purple knit cap; the women accompanying him were dressed entirely in black. He entered the store, but his two female companions remained outside. The security camera footage shows them on the corner speaking animatedly to each other and with another woman who wore a long blue parka. The women eventually entered the Deli, only to exit about a minute later with the Defendant and approximately four other people. Upon exiting, the Defendant's two female companions began speaking with a man in a bright blue hoodie. At first, the Defendant stood to the side of the conversation, but then moved to the middle and appeared to play the role of an intermediary. He first spoke with the man in the blue hoodie, who walked away after their interaction, and then turned to speak with the two women. Afterwards, he spoke to another person in grey and then walked out of the view of the security camera. At this point, the Defendant's two female companions began to speak with each other again in an animated fashion, while the man in the blue hoodie and others gathered on the corner milled about and watched them. One of the two women approached the man in the blue hoodie and reengaged in conversation with him, gesticulating emphatically as she spoke. The two stood close to each other and their conversation appears to have been tense. A few seconds into their conversation, a crowd gathered around them and Defendant emerged back in view. He stood to the side, and once again, broke up the conversation by speaking with the woman he had arrived with while the man in the blue hoodie looked on. As the Defendant spoke with the woman, a black car pulled up in front of the Deli and a woman in a brown jacket exited and stood near them. After about a minute, Defendant stepped away and turned his back to the conversation. By this time, a crowd of approximately eight to ten people had gathered on the Deli's corner. Suddenly, at around 8:28 p.m., a fight broke out between the woman in the long blue parka and the woman in the brown jacket, ending when one appeared to slash the other in the face with a knife. After this incident, the crowd briefly dispersed, and Defendant spoke to one of the two women with whom he had arrived at the Deli and another person dressed in black. The crowd, including Defendant and his two female companions, then moved towards the black car in front of the Deli. When the crowd was in front of the car, they shifted and began physically attacking the two women accompanying the Defendant. The two women were thrown to the ground and a group of approximately four to eight people kicked and pummeled them into the sidewalk. Two people ran away from the melee. Defendant attempted to pull one of the assailants off the women but was unsuccessful. He stood, spread his legs and, while still facing the group, began to quickly back away at a diagonal angle maintaining a spread stance. When he was about eight feet away from the crowd, he reached into his waistband and pulled out what appears to have been a firearm. He continued to move away from the crowd. Seconds later, at 8:29 p.m., when he was approximately 25-30 feet away, the Defendant pointed his firearm towards the ground and fired a single shot, which is shown by a flash on the security camera footage. The crowd dispersed, and the women stood up and got into their car.

II. DISCUSSION

a. The adjustment for the obliteration of the firearm's serial number under § 2K2.1(b)(4)(B)

The applicable United States Sentencing Guideline ("Sentencing Guideline" or "Guideline") provides for an upward adjustment of four-points in the calculation of the total offense level if the firearm's serial number was "altered or obliterated." U.S. Sent'g Guidelines Manual § 2K2.1(b)(4)(B). The Government argues for this enhancement on the theory that the serial number on the firearm recovered from Defendant was obliterated, not that it had been altered. The question at hand is therefore limited to whether the serial number was in such a state that it was "obliterated."

The term "obliterated" is not defined in the Sentencing Guidelines or its commentary. To construe "obliterate" we must turn to the rules of statutory construction. See United States v. Wong , 3 F.3d 667, 670-71 (3d Cir. 1993) (interpreting the Sentencing Guidelines subject to the rules of statutory construction). When construing an undefined term, "we typically give the [word] its ordinary meaning." Fed. Commc'n Comm'n v. AT&T Inc. , 562 U.S. 397, 403, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011) (internal quotations and citations omitted); see also United States v. Pray , 373 F.3d 358, 361 (3d Cir. 2004) (defining the word "imprisonment" as used in the Sentencing Guidelines in accordance with its ordinary usage.).

To "obliterate" connotes a total and utter destruction of something, such that there is no trace of it left behind. See, e.g. , Obliterate, Black's Law Dictionary (11th ed. 2019) ("1. to wipe out, rub off, or erase (a writing or other markings); 2. To remove from existence; to destroy all traces of."); Obliterate, Merriam-Webster's Unabridged Dictionary , https://www.merriam-webster.com/dictionary/obliterate (last visited November 29, 2021) ("To remove utterly from recognition or memory; to remove from existence: destroy utterly all trace, indication or significance of"); Obliterate , Oxford English Dictionary , https://www-oed-com.ezproxy.lib.ntust.edu.tw/view/Entry/129732?rskey=iomItP&result=2&isAdvanced=false#eid (last visited November 29, 2021) ("To blot out (anything written, drawn imprinted etc.) so as to leave no distinct traces; to erase, delete, efface."). It follows, then, that for a serial number to be "obliterated" it must be totally erased from the firearm such that it can no longer be read. The Second Circuit has adopted this same definition of "obliterate." See United States v. St Hilaire , 960 F.3d 61, 66 (2d Cir. 2020) ("Taking the dictionary definitions together in the context of a serial number, to obliterate is to efface entirely a character or a whole serial number, so that none of it is left.").

The Government advances a different reading of the word "obliterate," one that is quite different from the definition adopted here or by any other court. It argues (supported by Special Agent Hughes’ testimony) that the word "obliterate" is equivalent to the words it appears next to in two sections of the Guidelines, which include alter, tamper, and remove.² U.S. Sent'g Guidelines Manual §§ 2K2.1(b)(4)(B), 2B6.1, 2B6.1 cmt. The Government's reading cannot be correct. Interpreting obliterate, alter, tamper and remove to mean the same thing would render the terms listed redundant, if not wholly superfluous. It is a court's duty "to give effect, if possible, to every clause and word of a statute." Duncan v. Walker , 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal citations and quotations omitted). Courts are, accordingly, reluctant to adopt a reading which "treat[s] statutory terms as surplusage in any...