United States v. Timothy Harris

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4521

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

TIMOTHY JOELETTE HARRIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00376-BO-1)

Argued: May 16, 2013 Decided: June 26, 2013

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Shedd joined.

ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
NIEMEYER, Circuit Judge:

After Timothy Harris pleaded guilty to two counts of

possession of firearms by a felon, in violation of 18 U.S.C.

§ 922(g), the district court sentenced him to 105 months’

imprisonment. In computing the applicable sentencing range

under the Sentencing Guidelines, the district court applied

U.S.S.G. § 2K2.1(b)(4)(B), which provides for a four-level

enhancement if a firearm “had an altered or obliterated serial

number.” The district court found that the serial number on one

of the firearms possessed by Harris had been gouged and

scratched, rendering it less legible, but arguably not

illegible.

Harris contends that, even though the district judge was

unable to read the serial number correctly at the sentencing

hearing, the police report indicated that the serial number was

nonetheless legible. With this factual record, he contends that

§ 2K2.1(b)(4)(B) does not apply because no material change was

made to the serial number.

We conclude that Harris reads § 2K2.1(b)(4)(B) too

restrictively in suggesting that a serial number must be

illegible to be “altered.” As we explain herein, a serial

number that is made less legible is made different and therefore

is altered for purposes of the enhancement. Accordingly, we

affirm.

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I

After using a gun to threaten a woman during the course of

an argument in Raleigh, North Carolina, police officers arrested

Harris and recovered a .25 caliber handgun from him. The police

report described the condition of the gun:

It appears that the serial number on the gun was
altered and the fact that there are numerous deep
gouges and scratches across the width of the alpha
numerics it appears that this was done with some sort
of tool. However, the numbers are still legible.

Based on this incident and another, Harris was indicted for

and pleaded guilty to illegal firearms possession. The

presentence report recommended a four-level enhancement under

U.S.S.G. § 2K2.1(b)(4)(B) for possession of a firearm that had

an altered or obliterated serial number. Harris objected to the

presentence report’s recommendation, contending that “because

the serial number of the firearm was legible, the firearm was

traceable, and therefore the enhancement does not apply.”

At the sentencing hearing, the district court overruled

Harris’ objection and applied the enhancement. After

considering the police report, the court conducted its own

examination of the handgun in the courtroom with the parties

present and made the following factual findings:

[T]he gun was placed on the bench in front of
[me] about 18 inches away and . . . I was not able to
read the correct serial number. I read and looked
carefully and the serial number that I wrote down from
my observation was U032076. And, in fact, the actual

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serial number that was determined through more careful
and more scientific examination was U022078.

And it appears on the real evidence, on the gun
itself, that there are gouges in the metal and
scraping along the line of the serial number, but not
similar marks on other places on the metal barrel,
neither around the serial number, nor on the other
side of the barrel. So that the reasonable inference
is that the gouging and scraping around the serial
number was intended to affect the ability to literally
read the serial number not an accidental thing.

There isn’t any evidence that the defendant did
this, but there is evidence that the serial number was
obliterated. And so, I’ll include the four level
enhancement.

After applying the enhancement in its calculation of the

recommended sentencing range, the court sentenced Harris to 105

months’ imprisonment, which fell within the Sentencing

Guidelines range.

This appeal followed.

This appeal presents the single question of whether the

serial number on Harris’ handgun, which was marked with gouges

and scratches that the district court found made it less

legible, was “altered,” within the meaning of U.S.S.G.

§ 2K2.1(b)(4)(B) (providing for a four-level sentencing

enhancement for the possession of a firearm when a firearm has

an “altered or obliterated serial number”).

Harris contends that a serial number is not “altered,” even

though gouged and scratched, if it remains legible. He argues
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that “altered” requires that the serial number be “materially

changed” so that it is not discernible to the unaided eye.

Because the police report stated that the serial number on

Harris’ handgun was legible, he argues that the enhancement

should not have been applied.

The government, relying on the district court’s finding

that it could not accurately read the handgun’s serial number

when the handgun was placed on the bench before it, contends

that “at least one of the numbers” had been “obliterated” so

that the serial number was at least “altered.” It argues that

the gouges and scratches were “both purposeful and deep enough

that the firearm’s serial number was rendered more difficult to

ascertain accurately than it would have been absent the

scratch[es].”

While other courts of appeals have variously addressed what

is required to render a serial number “altered,” we have no

published opinion that does so.

The Gun Control Act of 1968 makes it a crime to “possess or

receive any firearm which has had the importer’s or

manufacturer’s serial number removed, obliterated, or altered.”

18 U.S.C. § 922(k). Although Harris was not charged with a

violation of § 922(k), his recommended sentencing range was

enhanced by application of a mimicking provision in the

Sentencing Guidelines, that provided for a four-level sentencing

5
enhancement for possession of a gun with the serial number that

had been “altered or obliterated.” U.S.S.G. § 2K2.1(b)(4)(B).

The Gun Control Act requires importers and manufacturers to

identify each firearm imported or manufactured with “a serial

number engraved or cast on the receiver or frame of the weapon,

in such manner as the Attorney General shall by regulations

prescribe.” 18 U.S.C. § 923(i); see also National Firearms Act

of 1968, 26 U.S.C. § 5842(a). Regulations require that the

importer or manufacturer “legibly identify each firearm” by

“conspicuously” placing the serial number on the frame or

receiver of the firearm. 27 C.F.R. § 478.92(a)(1) (emphasis

added) (implementing the Gun Control Act); see also 27 C.F.R. §

479.102(a) (implementing the National Firearms Act). And the

regulations ensure legibility and conspicuousness by prescribing

the minimum size and depth of the serial number. See id.

(requiring serial numbers to be in print no smaller than one-

sixteenth of an inch and in depth no less than .003 inch). The

depth also ensures permanence. The Bureau of Alcohol, Tobacco,

Firearms and Explosives has explained that requiring serial

numbers on firearms serves the important governmental interests

of enabling the tracking of inventory and record-keeping by

licensees; tracing specific firearms used in crimes; identifying

firearms that have been lost or stolen; and assisting in the

prosecution of firearm offenses. See ATF Ruling 2009-5. To

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these ends, 18 U.S.C. § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B)

serve the government’s interest in preserving the legibility and

permanence of serial numbers on firearms by punishing the

possession of a firearm with a serial number that has been

altered or obliterated.

Focusing on the term “altered,” Harris argues rationally

that a serial number is altered when it is rendered illegible

such that it cannot be traced, one of the most important

purposes for requiring serial numbers. See ATF Ruling 2009-5;

see also, e.g., United States v. Carter, 421 F.3d 909, 914 (9th

Cir. 2005) (“[Section] 2K2.1(b)(4) intends to ‘discourag[e] the

use of untraceable weaponry’” (quoting United States v. Seesing,

234 F.3d 456, 460 (9th Cir. 2000))); United States v. Jones, 643

F.3d 257, 259 (8th Cir. 2011) (“We must respect

§ 2K2.1(b)(4)(B)’s purpose to stem the flow of untraceable

firearms in the black market”). While Harris’ argument is

undoubtedly correct as far as it goes, it still leaves open the

question whether “altered,” which is less demanding than

“obliterated,” also includes a serial number that is not

illegible but is less legible than it would be without the

gouges and scratches.

Legibility is one of the most essential characteristics of

a serial number, as is reflected in the serial-number

regulations, which require that serial numbers be of a specified

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size and depth. In imposing these requirements, the regulations

reflect the government’s interest in having serial numbers

placed on firearms that have a minimum level of legibility.

Thus, possession of a firearm that is less legible than that

level frustrates the purpose of serial numbers and therefore is

targeted by § 922(k) and § 2K2.1(b)(4)(B).

These observations are confirmed by the provisions’ use of

the words “altered” and “obliterated” and the generally accepted

meanings of those words. To “alter” is “to cause to become

different in some particular characteristic . . . without

changing into something else.” Webster’s Third New

International Dictionary 63 (1993); see also The Random House

Dictionary of the English Language 60 (2d ed. 1987) (defining

“alter” as “to make different in some particular, as size,

style, course, or the like; modify”); Merriam-Webster’s

Collegiate Dictionary 35 (11th ed. 2007) (defining “alter” as

“to make different without changing into something else”). Each

of the definitions of “alter” recognizes that something is

“altered” when it is made “different” in some way.

“Obliterate,” in contrast, is defined as making something

“undecipherable or imperceptible.” Webster's Third New

International Dictionary 1557. Accordingly, when a serial

number is made less legible, it is altered but not obliterated.

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Thus, while the possession of a firearm with a serial

number that is no longer legible and conspicuous falls in the

heartland of § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B), a serial

number that is less legible or less conspicuous, but not

illegible, is also covered by § 922(k) and U.S.S.G.

§ 2K2.1(b)(4)(B). This interpretation that a serial number

rendered less legible by gouges and scratches is “altered”

prevents the word “obliterated” from becoming superfluous.

This is the conclusion that has been reached by a majority

of the courts of appeals. See, e.g., Carter, 421 F.3d at 910

(holding that “for the purposes of Guideline § 2K2.1(b)(4), a

firearm’s serial number is ‘altered or obliterated’ when it is

materially changed in a way that makes accurate information less

accessible” (emphasis added)); Jones, 643 F.3d at 259 (“A

partially ‘filed off’ or ‘scratched away’ serial number, which

is not visible to the naked eye, falls well within the statutory

scheme”); United States v. Justice, 679 F.3d 1251, 1254 (10th

Cir. 2012) (“What matters is what is ‘perceptible,’ not what can

be discerned by sophisticated scientific techniques”). But see

United States v. Perez, 585 F.3d 880, 885 (5th Cir. 2009)

(applying § 2K2.1(b)(4) where serial number had been scratched

but remained “readable,” because “the serial number on

[defendant’s] firearm looked like someone ‘tried to file [it]

off’”).

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In this case, the district court, which was the factfinder

for purposes of applying § 2K2.1(b)(4)(B), found that the .25

caliber handgun possessed by Harris had gouges and scratches

across the serial number that precluded it from reading the

serial number correctly, even as it attempted to do so

“carefully.” Moreover, it found that there were no further

markings on the handgun, indicating that the gouges and

scratches across the serial number were intentional. The court

thus found that these gouges and scratches made the serial

number less legible than it would have been without the gouges

and scratches.

With these findings, we conclude that the district court

did not err in applying the § 2K2.1(b)(4)(B) enhancement because

the evidence supports the conclusion that the serial number had

been “altered” by making it less legible and therefore

different.

Harris challenges this conclusion, arguing, in essence,

that the police report indicated that “the numbers [were] still

legible” and therefore were not made different. This argument,

however, is unpersuasive for two reasons. First, there is no

evidence in the record as to how the Raleigh police read the

serial number on Harris’ handgun. They could have examined the

number at a closer distance and under more intense light than

was the case when the district judge examined it, or they could

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have examined it aided by a magnifying glass or a microscope.

Under any hypothesis, however, the fact that they were able to

read the correct serial number does not controvert the district

court’s finding that the serial number was rendered less legible

by the gouges and scratches. Indeed, even the police recognized

that the number was not pristine:

Harris’ argument also fails to account for the fact that

the district court, not the Raleigh police, was the factfinder

and that we defer to the court’s fact findings unless they are

clearly erroneous. Here, we conclude that the district court’s

findings are not clearly erroneous because the court examined

the handgun, as any factfinder would, and found that the serial

number had been gouged and scraped and that it was unable to

read the correct serial number when “carefully” examining it.

Finally, Harris challenges the district court’s factfinding

process, arguing that the district court, by viewing the handgun

at a distance of 18 inches, “interject[ed] a subjective

component . . . into what should be a simple, objective

standard.” But examining the evidence is just what factfinders

do, and the process used by the district court in this case was

not an unreasonable way to determine the legibility of the

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serial number on Harris’ handgun. The court attempted to read

the serial number from a distance at which the court would have

been able to read a serial number without gouges and scratches,

as indicated by its ability to read several digits correctly and

its inability to read correctly two of the digits.

For the reasons given, we affirm the judgment of the

district court.

AFFIRMED

United States v. Timothy Harris

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