United States v. Justice
2012 U.S. App. LEXIS 10887
10th Cir.2012Background
- Justice pleaded guilty in the District of Kansas to felon in possession of a firearm.
- The district court increased his offense level by four levels under § 2K2.1(b)(4) for an obliterated serial number and by four levels under § 2K2.1(b)(6) for possession of a firearm in connection with another felony (meth possession and a stolen truck).
- The PSR set base at 22, total level 27, with an advisory range of 87–108 months.
- The pistol’s serial number was illegible at seizure but was restored by a crime lab.
- The truck Justice rode in was stolen; methamphetamine was found on his person.
- Justice objected to the enhancements, arguing the serial number was not obliterated and there was insufficient evidence of facilitation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of obliterated serial number | Justice argues obliterated requires irretrievable loss | Justice contends obliterated means perceptibly unreadable | Obliterate means perceptible but undecipherable, not necessarily irretrievable |
| Sufficiency of evidence for § 2K2.1(b)(6)(B) | State that firearm possession facilitated the drug offense | No clear facilitation linking gun to drug possession | Evidence sufficed that firearms facilitated or could have facilitated the meth possession |
| Requirement of a specific facilitation finding | District court erred by not explicitly finding facilitation | No reversible error shown without controlling authority | No plain error; remand not required |
Key Cases Cited
- United States v. Mollner, 643 F.3d 713 (10th Cir. 2011) (de novo review of guideline interpretation)
- United States v. Carter, 421 F.3d 909 (9th Cir. 2005) (altered/obliterated meaning; interpretation guidance)
- United States v. Jenkins, 566 F.3d 160 (4th Cir. 2009) (emboldenment theory for facilitation)
- United States v. Fuentes Torres, 529 F.3d 825 (8th Cir. 2008) (gun near drugs may facilitate offense)
- United States v. Bullock, 526 F.3d 312 (6th Cir. 2008) (facilitation by firearm in drug cases)
- United States v. West, 643 F.3d 102 (3d Cir. 2011) (emboldenment theory acknowledged; not always applicable)
- United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009) (facilitation requires substantial link; some limits)
- United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. 2012) (plain error review framework)