In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3752
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CEDRIC HAYES,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 16 CR 50002 — Frederick J. Kapala, Judge.
ARGUED SEPTEMBER 6, 2017 — DECIDED OCTOBER 3, 2017
Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Cedric Hayes pleaded guilty to one
count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). He now challenges his sentence, arguing
that the district court erred in applying an enhancement to his
base offense level under § 2K2.1(b)(4)(B) of the United States
Sentencing Commission Guidelines. That section, which
2 No. 16‐3752
applies to offenses involving firearms, states that a four‐level
enhancement is appropriate where a firearm’s serial number
has been “altered or obliterated.” Hayes also challenges the
district court’s calculation of his criminal history category.
I. BACKGROUND
On February 2, 2016, a grand jury indicted Hayes on two
counts of being a felon in possession of a firearm. On June 28,
2016, as part of a plea agreement, Hayes pleaded guilty to
Count Two of the indictment, which specifically charged him
with possessing a model AK‐47 rifle.
In its recitation of the facts, the plea agreement stated that
the serial number on the AK‐47 “had been covered by a paint‐
like substance that prevented the serial number from being
visible.” It was the government’s position that Hayes’ offense
level should increase by four, pursuant to § 2K2.1(b)(4)(B) of
the Guidelines, because the serial number was “altered or
obliterated.” The plea agreement noted, however, that Hayes
disagreed that the enhancement should apply.
Prior to sentencing, the United States Probation Office
prepared a Presentence Investigation Report (PSR). The PSR’s
factual findings repeated the statement from the plea agree‐
ment that the serial number was not visible because it was
covered by a “paint‐like substance.” Based on that finding, the
PSR recommended that the court apply the § 2K2.1(b)(4)(B)
enhancement.
In his sentencing memorandum, Hayes conceded that the
AK‐47ʹs serial number was covered in a paint‐like substance,
but argued that because the serial number was not “physically
No. 16‐3752 3
altered,” the enhancement should not apply. As support for
that argument, Hayes noted that the Forensic Science Labora‐
tory of the Bureau of Alcohol, Tobacco, Firearms, and Explo‐
sives applied a “chemical solvent and light polishing” to the
gun, which ultimately revealed the serial number.
On October 17, 2016, the district court held a sentencing
hearing. The court acknowledged Hayes’ objection, but
accepted the position of the PSR and the government that the
AK‐47ʹs serial number was “altered or obliterated” for pur‐
poses of § 2K2.1(b)(4)(B). The court adopted the Guidelines
calculation contained in the PSR, finding that Hayes’ offense
level was 23, and his criminal history category was five. The
resulting Guidelines range was 84 to 105 months’ imprison‐
ment. After hearing from Hayes and addressing the factors to
be considered under 18 U.S.C. § 3553(a), the court imposed a
sentence of 94 months’ imprisonment. Hayes timely appealed.
II. DISCUSSION
A. Base Offense Level Enhancement
Hayes’ first argument on appeal is that the district court
erred in finding that the AK‐47ʹs serial number had been
“altered or obliterated” pursuant to § 2K2.1(b)(4)(B) of the
Guidelines. “We review de novo the district court’s legal
interpretation of sentencing guidelines and review factual
findings for clear error.” United States v. Harris, 718 F.3d 698,
703 (7th Cir. 2013) (citation omitted).
As an initial matter, Hayes contends that the court improp‐
erly accepted as true, without requesting additional evidence,
the fact that the gun’s serial number was covered by paint.
4 No. 16‐3752
There is simply no merit to this argument because, although
challenging the applicability of the enhancement, Hayes had
conceded the underlying factual basis multiple times. He
signed the plea agreement, in which he admitted the AK‐47ʹs
“serial number had been covered by a paint‐like substance that
prevented the serial number from being visible.” The PSR also
contained the same sentence, and at the sentencing hearing,
Hayes expressly told the court that he had no disputes with the
PSR’s factual findings. Finally, his own sentencing memoran‐
dum stated that he “concedes [the AK‐47] appeared to be
covered in a paint‐like substance, which covered the serial
number.” The district court did not err in accepting this
undisputed fact as set forth in the plea agreement, the PSR, and
Hayes’ own memorandum.
We turn, then, to the issue of whether § 2K2.1(b)(4)(B)’s use
of “altered or obliterated” contemplates a serial number that
has been covered by a substance that prevents it from being
visible. Neither the Guidelines nor their Application Notes
provide definitions of “altered or obliterated” or any other
helpful guidance. We have, however, previously addressed the
parameters of this language, albeit in an unpublished opinion.
In United States v. Salinas, we held that “a firearm’s serial
number is ‘altered or obliterated’ for purposes of
§ 2K2.1(b)(4)(B) if it has been ‘materially changed in a way that
makes accurate information less accessible.’” 462 F. App’x 635,
637 (7th Cir. 2012) (quoting United States v. Perez, 585 F.3d 880,
884 (5th Cir. 2009)). The serial number at issue in that case had
been filed off, but ultimately was recovered by the Milwaukee
Crime Lab. Id. However, because the filing made it “unread‐
able by the naked eye,” we found that it was “altered or
No. 16‐3752 5
obliterated” under the Guidelines. The result in that case was
supported by similar holdings from three of our sister circuits,
each of which emphasized that the relevant inquiry is whether
there has been a material change to a serial number “that
makes accurate information less accessible.” See United States
v. Carter, 421 F.3d 909, 916 (9th Cir. 2005); Perez, 585 F.3d at 884;
United States v. Jones, 643 F.3d 257, 258–59 (8th Cir. 2011).
On the record before us, the extent of what we know about
the serial number is that it was not visible because it was
covered with a “paint‐like substance,” and that forensic
specialists had to use a “chemical solvent” to uncover it. Based
on that limited factual detail, we conclude that the AK‐47ʹs
serial number was materially changed in a way that made the
accurate information less accessible. Therefore, the
§ 2K2.1(b)(4)(B) enhancement should apply.
In reaching that conclusion, we reject Hayes’ interpretation
of the “altered or obliterated” language, which would limit its
application to cases where the serial number has been com‐
pletely destroyed or where one digit has been changed to
another. Instead, we agree with the Ninth Circuit’s assessment
that “[i]rrespective of how ‘obliterated’ is construed, ‘altered’
surely requires a lesser degree of defacement.” Carter, 421 F.3d
at 912. Hayes argues that a stricter construction is demanded
by reading “altered or obliterated” as a single phrase, which,
according to Hayes, indicates the Sentencing Commission’s
intent to limit the enhancement’s application to the situations
he proposes. That analysis, however, ignores the presence of
the word “or,” which demonstrates that either term, individu‐
ally, can serve as a basis for application of the enhancement. Id.
at 911 (noting that the language is “presented in the disjunc‐
6 No. 16‐3752
tive” and holding that “even if we were to construe ‘obliter‐
ated’ as Carter urges … the sentence enhancement properly
applies so long as the serial number is merely ‘altered’”).
Hayes’ proposed construction also belies the underlying
purposes of § 2K2.1(b)(4)(B). In Carter, the Ninth Circuit
explained that the legislative purpose of the enhancement was
to discourage the use of untraceable weaponry. 421 F.3d at 914
(citing United States v. Seesing, 234 F.3d 456, 460 (9th Cir. 2001)).
It clarified, however, that “[t]his purpose is advanced not only
by punishing those who possess untraceable firearms, but also
by punishing those who possess firearms that are more
difficult, though not impossible, to trace … .” Id. Accordingly,
any material change that makes the serial number less accessi‐
ble, thereby making the firearm harder to trace, fits
§ 2K2.1(b)(4)(B)’s intended definition of “altered or obliter‐
ated.” Id. at 915–16. Covering a firearm’s serial number with a
“paint‐like substance,” the removal of which requires a
chemical solvent, surely makes that firearm more difficult to
trace. The AK‐47ʹs serial number, therefore, was “altered or
obliterated” for purposes of § 2K2.1(b)(4)(B).
B. Criminal History Calculation
Hayes’ second argument on appeal is that the district court
erred in assessing three criminal history points based on a
prior state‐court conviction for aggravated unlawful use of a
weapon. Hayes failed to object to the criminal history calcula‐
tion in the district court, but the government does not contend
that he waived his argument. Typically, where a defendant
does not object to his criminal history calculation in the district
court, we treat the objection as forfeited and review for plain
No. 16‐3752 7
error. See, e.g., United States v. Brown, 865 F.3d 566, 575 (7th Cir.
2017); United States v. Gill, 824 F.3d 653, 660 (7th Cir. 2016).
Under that standard, we will reverse only where: “(1) there is
an error; (2) the error is clear or obvious; (3) the error affected
the defendant’s substantial rights; and (4) the error seriously
impugns the fairness, integrity, or public reputation of the
proceedings.” Brown, 865 F.3d at 575 (citation omitted).
In 2003, Hayes was convicted in Illinois state court of
aggravated unlawful use of a weapon, in violation of 720 ILCS
5/24‐1.6. Based on that conviction, the PSR recommended, and
the district court assessed, three criminal history points in
Hayes’ Guidelines calculation. After the 2003 conviction,
however, both this Court and the Illinois Supreme Court have
held that the Illinois statute is unconstitutional. See Moore v.
Madigan, 702 F.3d 933, 942 (7th Cir. 2012); People v. Aguilar,
2 N.E.3d 321, 328 (Ill. 2013).
Hayes argues, and the government agrees, that the court
erred in assessing criminal history points based on a conviction
under an unconstitutional statute. Indeed, the Guidelines
themselves instruct that convictions that are ruled unconstitu‐
tional are not to be counted in calculating a defendant’s
criminal history. U.S.S.G. § 4A1.2, Application Note 6. Thus,
we agree that the court erred in assessing criminal history
points based on this conviction. See United States v. Jenkins, 772
F.3d 1092, 1098 (7th Cir. 2014). We have consistently held that
this type of error, which leads to an incorrect Guidelines
calculation, constitutes plain error on review. Brown, 865 F.3d
at 575 (citing Jenkins, 772 F.3d at 1098). Therefore, we must
remand for resentencing.
8 No. 16‐3752
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s
application of the base offense level enhancement under
U.S.S.G. § 2K2.1(b)(4)(B), but REMAND for resentencing based
on the improper assessment of criminal history points for
Hayes’ prior conviction under 720 ILCS 5/24‐1.6.