F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-8006
JAMES HERBERT MCMAHON, (D.C. No. 97-CR-85)
(D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Defendant James Herbert McMahon was charged in a two-count indictment with
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and possessing
a firearm with an altered serial number in violation of 18 U.S.C. § 922(k). In exchange
for Defendant’s guilty plea to the § 922(g) offense, the Government dismissed the §
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
922(k) offense. At sentencing, however, the district court enhanced Defendant’s base
offense level under U.S.S.G. § 2K2.1(b)(4) by two levels because the firearm he
possessed had an altered serial number. Defendant appeals, arguing that because he had
no knowledge that the serial number on the firearm was altered, the district court erred in
applying the two level enhancement. We exercise jurisdiction under 18 U.S.C. § 3742,
and affirm.
U.S.S.G. § 2K2.1, comment. (n. 19) states that “enhancement under subsection
(b)(4) for a . . . firearm with an altered or obliterated serial number applies whether or not
the defendant knew or had reason to believe that the firearm . . . had an altered or
obliterated serial number.” Every circuit which has addressed the issue has held that
§ 2K2.1(b)(4) lawfully imposes upon a felon in possession of a firearm the burden of
inquiring into the condition of the weapon’s serial number. United States v. Abernathy,
83 F.3d 17, 19 (1st Cir. 1996); United States v. Williams 49 F.3d 92 (2d Cir. 1995);
United States v. Schnell, 982 F.2d 216, 219-22 (7th Cir. 1992). Accordingly, Defendant’s
claim that he had no knowledge that the firearm he possessed had an altered serial
number is of no consequence for purposes of applying the sentencing guidelines. The
district court properly applied the sentencing guidelines to Defendant.
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Accordingly, the judgment of the district court is AFFIRMED. Defendant’s
motion for an initial en banc hearing is DENIED. Defendant may move for rehearing en
banc in accordance with Fed. R. App. P. 35(c). The mandate shall issue forthwith.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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