If So, Object to that Four-Level Enhancement Citing the Sixth Circuit’s Recent Decision in U.S. v. Sands, 948 F.3d 709 (6th Cir. 2020).
When a defendant pleads guilty to being a felon in possession of a firearm, there are several enhancements that may be applied under the guidelines. For example, if the offense involved 3 to 7 firearms, there is a two-level enhancement. USSG § 2K2.1(b)(1). If a firearm was stolen, there is a two-level enhancement. USSG § 2K2.1(b)(4)(A).
The enhancement we want to discuss in this post is the four-level enhancement for possessing a firearm with an “altered or obliterated serial number” pursuant to USSG § 2K2.1(b)(4)(B). This is a strict liability enhancement, so 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).
The Sixth Circuit Court of Appeals recently considered this enhancement in U.S. v. Sands, 948 F.3d 709 (6th Cir. 2020).
In Sands, the defendant argued that the serial numbers on his firearm were scratched making them harder to read but, nevertheless, the numbers were still readable with the naked eye. Thus, according to the defendant, the numbers were defaced, not altered.
The Sixth Circuit first agreed with other Circuits “that a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” Sands, 948 F.3d at 711 (quoting United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005)). But the Sixth Circuit still needed to decide where to draw the line as to what alterations are material.
The Sixth Circuit discussed cases in other Circuits where the serial numbers could be deciphered using a microscope or other forensic techniques but were NOT decipherable with the naked eye. See e.g., Carter, 421 F.3d at 910. Those Circuits concluded that the numbers were altered and the enhancement applied. For example, in U.S. v. Jones, the Eighth Circuit held that “the serial number on Jones’s firearm was ‘altered or obliterated.’ A partially ‘filed off’ or ‘scratched away serial number, which is not visible to the naked eye, falls well within the statutory scheme.” U.S. v. Jones, 643 F.3d 257, 259 (8th Cir. 2011).
If you listen to the oral argument in this case, you will hear that the Sixth Circuit seemed most interested in whether the numbers could be seen with the naked eye.
Drawing on the reasoning of the cases from other Circuits where the numbers could not be seen with the naked eye, the Sixth Circuit ultimately held that a serial number that IS visible to the naked eye is not “altered or obliterated” under § 2K2.1(b)(4)(B). The Sixth Circuit found that drawing the line at “visible to the naked eye” comported with the other Circuits’ decisions “because any defacement that slight does not constitute a ‘material change,’ even if it does make the serial number’s information technically ‘less accessible’ by requiring one to squint or view the number from a closer position.” Id. at 715.
The takeaway here is that when you get a presentence report investigation that applies the four-level enhancement for possessing a firearm with an “altered or obliterated serial number” pursuant to USSG § 2K2.1(b)(4)(B), find a picture of the firearm or go look at the firearm. If you can see the serial number with your naked eye, you may want to object to the enhancement citing U.S. v. Sands, 948 F.3d 709 (6th Cir. 2020). More specifically, if you are in the Eighth Circuit (like Carver, Cantin and Mynarich, LLC is), you can use Sands to distinguish your case from the “naked eye” language specifically used in Jones, 643 F.3d 257, 259 (8th Cir. 2011).