United States v. Sands

• Citation: 948 F.3d 709
• Decision Date: 24 January 2020
• Docket Number: No. 17-2420,17-2420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray SANDS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

948 F.3d 709

UNITED STATES of America, Plaintiff-Appellee,

v.Charles Ray SANDS, Defendant-Appellant.

No. 17-2420

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2018

Decided and Filed: January 24, 2020

GRIFFIN, Circuit Judge.

After defendant Charles Sands pleaded guilty to being a felon in possession of a firearm, the district court applied a four-level sentence enhancement for possessing a firearm with an "altered or obliterated serial number" pursuant to USSG § 2K2.1(b)(4)(B). The district court applied the enhancement because the firearm’s serial number was, although readable, defaced with scratches in three separate locations. Sands challenges the application of the enhancement and argues that the district court erred in finding that the numbers had been "altered" because they were still legible to the naked eye.

We now clarify the standard for § 2K2.1(b)(4)(B) ’s application and, consistent with several other circuits, conclude "that a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible." United States v. Carter , 421 F.3d 909, 916 (9th Cir. 2005). Moreover, we hold that a serial number that has been defaced but is still visible to the naked eye is not "altered or obliterated" under § 2K2.1(b)(4)(B). Because the district court erred in interpreting and applying this guideline, we vacate Sands’s sentence and remand for resentencing.

I.

When agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives executed a search warrant on Sands’s residence, they found him sitting on the couch in the living room with another individual. Sands immediately told the agents that there was a gun inside a safe underneath a pillow he was sitting on. A search of the premises yielded, among other things, a .40 caliber pistol. The serial number "SBS63662" appeared in three places on the weapon, with scratches on all three. Sands, a convicted felon, told the agents that he had found the pistol several weeks earlier. He admitted that he knew it was illegal for him to possess a firearm but denied tampering with the serial numbers.

A federal grand jury indicted Sands for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possessing a firearm "which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered," in violation of 18 U.S.C. § 922(k). Sands agreed to plead guilty to the § 922(g)(1) charge. In return, the government agreed to dismiss the § 922(k) charge. The district court held a change of plea hearing and accepted Sands’s guilty plea. The United States Probation Office then conducted a presentence investigation and prepared a report ("PSR") using the November 1, 2016 edition of the United States Sentencing Guidelines Manual.

The initial PSR recommended applying a four-level sentence enhancement pursuant to USSG § 2K2.1(b)(4)(B) because "the firearm possessed by Mr. Sands had an altered or obliterated serial number." Sands filed several objections to the initial PSR, including one challenging the applicability § 2K2.1(b)(4)(B). According to Sands, "[a]lthough the serial number on the firearm was scratched, it remained readable with the naked eye" and therefore "was neither altered nor obliterated." The final PSR responded to that objection:

The probation officer opines the serial number on the .40 caliber firearm possessed by Mr. Sands was altered or obliterated. The serial number was defaced in three different locations. Based on a review of photographs of the firearm, the serial number in one of the locations appears to be totally obliterated and illegible. The serial number in the other two locations is significantly defaced, but admittedly still readable; albeit barely.

Before the sentencing hearing, the government and Sands both briefed the issue. The government included small photographs of the weapon’s serial numbers in its sentencing memorandum. Sands introduced larger, clearer photographs. In light of these exhibits, the district court did not examine the weapon itself.

At the hearing, the district court recognized that there was no binding authority from this court on this issue and noted that the parties had relied on three out-of-circuit cases: United States v. Harris , 720 F.3d 499 (4th Cir. 2013), United States v. Carter , 421 F.3d 909 (9th Cir. 2005), and United States v. Adams , 305 F.3d 30 (1st Cir. 2002). Harris and Carter concerned § 2K2.1(b)(4)(B), while Adams interpreted similar language from 18 U.S.C. § 922(k). After hearing the parties’ oral arguments, the court issued the following ruling:

The Court finds the Adams case and the Harris case to be persuasive that the enhancement should be scored in this particular case. The Ninth Circuit goes a little bit farther, but the Court finds the Adams and Harris cases to be persuasive, and I intend to follow them as it relates to the serial number and the defacing of the serial number on the weapon that is involved in this particular case. It is clearly made less legible and is clearly altered for the purpose of trying to mask the identity of this weapon. The defendant’s argument is that the numbers, albeit harder to read, are still readable. And to a certain extent with the exception of the left to right, the first six and the second six, in the Court’s judgment, are much more difficult to read, at least on the photograph that I have in front of me right now, than if the weapon was clean, if you will, and not defaced. I think it meets the standard. The government has met their burden. Accordingly, the defendant’s objection in this regard is overruled.

The district court then imposed a seventy-eight-month sentence. With the four-level enhancement, the guidelines range was seventy to eighty-seven months. Without it, the range would have been forty-six to fifty-seven months. Sands timely appealed.

II.

"In evaluating the district court’s calculation of the advisory Guidelines range, we review the district court’s factual findings for clear error and its legal conclusion de novo ." United States v. Lalonde , 509 F.3d 750, 763 (6th Cir. 2007). A factual finding is clearly erroneous "when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. McGee , 494 F.3d 551, 554 (6th Cir. 2007) (quoting Tran v. Gonzales , 447 F.3d 937, 943 (6th Cir. 2006) ). We review de novo "the district court’s legal interpretation of the Guidelines, including mixed questions of law and fact." United States v. Settle , 414 F.3d 629, 630 (6th Cir. 2005). "A district court’s application of the facts to the Sentencing Guidelines" is one such mixed question that requires fresh review. United States v. Middleton , 246 F.3d 825, 844 (6th Cir. 2001).

III.

A.

At issue is the interpretation and application of a guideline provision. "In interpreting the Sentencing Guidelines, the traditional canons of statutory interpretation apply." United States v. Jackson , 635 F.3d 205, 209 (6th Cir. 2011). "Our analysis begins with the plain meaning and, if the language is unambiguous, ends there as well." Perez v. Postal Police Officers Ass’n , 736 F.3d 736, 740 (6th Cir. 2013). "If the text alone does not admit a single conclusive answer, we can draw on a broader range of interpretive tools." Id. at 741 (citing Kasten v. Saint-Gobain Performance Plastics Corp. , 563 U.S. 1, 11–16, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011) ). Dictionaries lie within our toolbox. See, e.g. , MCI Telecomms. Corp. v. AT&T Co. , 512 U.S. 218, 225, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

USSG § 2K2.1(b)(4)(B) applies to Sands’s firearms conviction, and it provides that "[i]f any firearm ... had an altered or obliterated serial number, increase [the offense level] by 4."¹ A strict liability enhancement, it applies "regardless of whether the defendant knew or had reason to believe that the firearm ... had an altered or obliterated serial number." USSG § 2K2.1 cmt. n.8(B); see United States v. Murphy , 96 F.3d 846, 849 (6th Cir. 1996) (upholding the lack of a mens rea requirement). It does not require any showing that the defendant was the one who damaged the serial number.

If a weapon has multiple serial numbers, only one of them needs to be altered or obliterated for the enhancement to apply. "The text of the guideline requires only ‘an altered or obliterated serial number’ ... [and] does not require that all of the gun’s serial numbers be so affected." United States v. Serrano-Mercado , 784 F.3d 838, 850 (1st Cir. 2015). "In common terms, when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically signals that the article is being used as a synonym for either ‘any’ or ‘one.’ " United States v. Warren , 820 F.3d 406, 408 (11th Cir. 2016) (per curiam) (quoting United States v. Alabama , 778 F.3d 926, 932 (11th Cir. 2015) ). Thus, § 2K2.1(b)(4)(B) "applies either when any serial number on a gun has been altered or obliterated or when just one serial number has been altered or obliterated." Id. ; see United States v. Thigpen , 848 F.3d 841, 846 (8th Cir. 2017). In this case, the firearm had three depictions of the serial number, each showing slightly different levels of damage.

B.

The Guidelines do not define "altered" or "obliterated." Carter , 421 F.3d at 911. We must therefore give the terms the ordinary meaning they had when § 2K2.1(b)(4)(B) went into effect. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012). As an initial matter, we agree with the Fourth Circuit that " ‘altered[ ]’ ... is less demanding than ‘obliterated.’ " Harris , 720 F.3d at 503 (collecting definitions of both words). And, because our interpretation of "altered" resolves this appeal, we need not interpret "obliterated."

What, then, does it mean for a serial number to be "altered"? Dictionary definitions help answer this question. To "alter," they tell us,...