FILED
United States Court of Appeals
Tenth Circuit
May 30, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 11-3208
CODY M. JUSTICE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 2:11-CR-20012-KHV-1)
Submitted on the briefs: *
Michael L. Harris, Assistant Federal Public Defender, (Cyd Gilman, Federal
Public Defender, with him on the brief), Kansas City, Kansas, for Defendant -
Appellant.
Leon Patton, Assistant United States Attorney, (Barry R. Grissom, with him on
the brief), Kansas City, Kansas, for Plaintiff - Appellee.
Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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. See
18 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 USSG § 2K2.1(b)(4) for possession of a weapon with an obliterated serial
number and another four-level enhancement under USSG § 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
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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 USSG § 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
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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
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with a felony offense”; and (3) that the district court failed to make a specific
factual finding of facilitation.
II. DISCUSSION
A. 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.” USSG § 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.
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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
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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.
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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 understanding of facilitate, we believe that it would not be clear
error to find on the facts before the district court that Defendant’s possession of
the two firearms “facilitated, or had the potential of facilitating,” his possession
of the methamphetamine. USSG § 2K2.1 cmt. n.14(A). Defendant was carrying
methamphetamine on his person. The firearms were within easy reach, and they
were loaded. A reasonable person could find that the firearms gave him a sense
of security emboldening him to venture from his home with drugs that someone
might wish to take from him by force.
Other courts agree. For example, in Fuentes Torres the defendant, who was
arrested for driving while intoxicated, had a gun in his car’s center console and
two grams of cocaine in a nearby cup holder. See 529 F.3d at 825–26. The
district court imposed the enhancement. It explained:
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I think if I go and buy a gun because I’m concerned about my safety
but I’m also either dealing or using drugs, it may very well be that
I’m using that gun for dual purposes. It’s there if I got problems
with somebody threatening any member of my family, but I’m also
protecting my drugs which are in the car.
Id. at 826. The Eighth Circuit affirmed, stating, “When a drug user chooses to
carry his illegal drugs out into public with a firearm, there are many ways in
which the weapon can facilitate the drug offense and dangerously embolden the
offender.” Id. at 827 (brackets and internal quotation marks omitted). See also
United States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010) (vial of PCP in
defendant’s pocket and loaded gun between driver’s seat and center console; “[i]f
the district court does find that the possession of a firearm facilitated or had the
potential to facilitate a drug possession it will rarely be clearly erroneous.”
(internal quotation marks omitted)).
Similarly, in Jenkins police officers, who had responded to a report that a
man had been firing a weapon downtown, restrained the defendant on the ground.
They found a loaded revolver between his stomach and the ground and later found
cocaine base between his fingers. See 566 F.3d at 161. The Fourth Circuit
affirmed the § 2K2.1(b)(6) enhancement. See id. at 164. It reasoned that
although “the requirement [of facilitation] is not satisfied if the firearm was
present due to mere accident or coincidence,” id. at 163 (internal quotation marks
omitted), other evidence supported the finding of facilitation:
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[The defendant] took the revolver and cocaine onto a public street,
near where a gun had recently been fired, close to midnight. This
environment suggests that there was a heightened need for protection
and that the firearm emboldened [him]. In addition, [he] possessed
the revolver on his person and it was loaded, with one round in the
chamber. Thus, it was accessible and ready for use, which further
suggests that it was present for protection or to embolden [the
defendant].
Id. at 164 (citation and internal quotation marks omitted).
To be sure, emboldenment is not always present when firearms are near
drugs. In Jeffries the defendant took a gun from another man after a violent
altercation, got into his car, picked up his girlfriend, and almost immediately
thereafter was stopped by police and arrested. See 587 F.3d at 691. They found
the gun on the driver’s seat and a rock of cocaine on the floor behind the seat.
See id. Although stating that a potential for facilitation would “usually be found”
when drugs and weapons are both involved in a drug-possession case, id. at 694
(internal quotation marks omitted), the court ruled that even if the cocaine
belonged to the defendant, the evidence was insufficient to establish that the gun
emboldened him, see id. at 695. That decision is consistent with our decision
here because the evidence in that case showed that the acquisition of the gun was
subsequent to and unrelated to the drug possession. See also West, 643 F.3d at
115–16 (rejecting application of emboldenment theory when marijuana found in
glove compartment and revolver found in backpack in trunk of defendant’s car);
United States v. Smith, 535 F.3d 883, 886 (8th Cir. 2008) (emboldenment theory
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not applicable because defendant did not venture from home into public with the
drugs or firearms).
But when the defendant is out and about, with drugs on his person and a
loaded firearm within easy reach, one can infer that the proximity of the weapon
to the drugs is not coincidental and that the firearm “facilitated, or had the
potential of facilitating,” the drug offense by emboldening the possessor. That
being the factual setting here, the district court’s finding was not clearly
erroneous.
C. Specific Finding of Facilitation
Defendant contends that even if there was sufficient evidence of facilitation
to satisfy § 2K2.1(b)(6)(B), we must set aside the enhancement because the
district court failed to make a specific finding that the firearms in the truck
facilitated his possession of methamphetamine. Because Defendant failed to raise
the issue in district court, we review only for plain error. See United States v.
Mendoza-Lopez, 669 F.3d 1148, 1150–1151 (10th Cir. 2012). We reverse for
plain error only “when there is (1) error, (2) that is plain, which (3) affects the
defendant’s substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1151 (internal
quotation marks omitted). “The defendant has the burden of establishing all four
elements of plain error.” United States v. Hall, 625 F.3d 673, 684 (10th Cir.
2010). Defendant has failed to establish both the second and third prongs.
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Even if the district court committed error, the error was not plain. “An
error is plain if it is clear or obvious under current, well-settled law. In general,
for an error to be contrary to well-settled law, either the Supreme Court or this
court must have addressed the issue.” United States v. Thornburgh, 645 F.3d
1197, 1208 (10th Cir. 2011) (citation and internal quotation marks omitted).
Defendant offers that a few circuits require the district court to make a specific
finding of facilitation before enhancing the defendant’s offense level under
§ 2K2.1(b)(6)(B). See West, 643 F.3d at 115 (“[T]he District Court was required
to make a specific finding that the gun at issue facilitated or had the potential to
facilitate the possession offense.”); Jeffries, 587 F.3d at 694 (same); United States
v. Blankenship, 552 F.3d 703, 705 (8th Cir. 2009) (same). But he is unable to
point to any authority from this court or the Supreme Court to support this
proposition, and we know of none.
Moreover, even if Defendant carried his burden on the second prong, his
challenge fails under the third prong, which establishes that “we reverse only
when there is a reasonable probability that, but for the error claimed, the result of
the proceeding would have been different.” United States v. Hoskins, 654 F.3d
1086, 1099 (10th Cir. 2011) (citation, ellipses, and internal quotation marks
omitted). In our view, the probability of a different result is too slim to justify
reversal and remand.
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III. CONCLUSION
We AFFIRM Defendant’s sentence.
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