United States v. Serrano-Mercado
784 F.3d 838
| 1st Cir. | 2015Background
- Serrano pled guilty to being a felon in knowing possession of a 9mm pistol in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).
- Plea agreement recommended a Guidelines range based on base offense level 22 (one prior "crime of violence") and did not seek the § 2K2.1(b)(4) serial-number enhancement.
- The amended presentence report (PSR) urged a base offense level 24 (finding Serrano had more than one prior "crime of violence") and applied a 4-level enhancement for an obliterated serial number on the firearm frame.
- At sentencing the district court adopted the PSR: found two domestic-violence convictions and one assault conviction qualified as crimes of violence, applied the serial-number enhancement, and imposed 100 months (within a 100–125 month Guidelines range).
- On appeal Serrano argued (1) the 2005 Puerto Rico Article 3.1 domestic-violence conviction did not qualify as a "crime of violence" and thus the base level should be 22, and (2) the serial-number enhancement was improper because an unaltered serial number remained on the slide.
- The Court of Appeals affirmed: reviewed the predicate-conviction issue for plain error (Serrano did not properly preserve it) and reviewed the serial-number enhancement de novo (preserved below).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Serrano's 2005 conviction under P.R. Law tit. 8 § 631 (Article 3.1) counts as a "crime of violence" for Guidelines base-level calculation | Serrano: Article 3.1 is divisible; some variants (psychological abuse/intimidation/persecution) are nonviolent and cannot be used without Shepard materials; he did not get those materials below, so plain-error relief is required | Government: Even if divisible, at least the physical-force variant of Article 3.1 qualifies as a crime of violence; Serrano failed to object below and thus cannot show prejudice from the district court's determination | Affirmed. Under plain-error review Serrano failed to show the required prejudice because he did not provide (or request) Shepard-authorized documents and did not argue he was convicted only of a non-violent variant; the court reasonably concluded a physical-force variant likely qualified as a crime of violence, so no reversible plain error. |
| Whether the § 2K2.1(b)(4) four-level enhancement applies where a firearm had an obliterated serial number on the frame but an unaltered serial number on the slide | Serrano: Enhancement shouldn't apply because a readable serial number remained on the gun; the guideline contemplates that the serial number itself be untraceable | Government: The guideline requires only that a serial number be altered or obliterated; obliteration of a serial number on a component (the frame) undermines traceability and falls within the text and purpose of the enhancement | Affirmed. De novo review: the guideline text requires only "an altered or obliterated serial number," which the panel read to cover obliteration of a serial number on the frame even if another component retains an intact number; enhancement properly applied. |
Key Cases Cited
- United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006) (discussed prejudice requirement when defendant forfeited challenge to use of divisible-statutute conviction)
- United States v. Davis, 676 F.3d 3 (1st Cir. 2012) (applied Turbides-Leonardo’s prejudice analysis under plain-error review for predicate convictions)
- United States v. Jonas, 689 F.3d 83 (1st Cir. 2012) (describing the categorical approach for determining whether a prior conviction is a crime of violence)
- Shepard v. United States, 544 U.S. 13 (2005) (limits the documents a court may consult to identify the specific variant of a conviction under a divisible statute)
- Johnson v. United States, 559 U.S. 133 (2010) (defining "violent force" for force-clause analysis)
- United States v. Adams, 305 F.3d 30 (1st Cir. 2002) (holding alteration of a serial number violates § 922(k) without regard to readability)
- United States v. Carter, 421 F.3d 909 (9th Cir. 2005) (interpreting § 2K2.1(b)(4) with deterrence purpose; cited for applying enhancement for tampering)
- United States v. Ríos-Hernández, 645 F.3d 456 (1st Cir. 2011) (discussing when failure to object may be treated as acquiescence to PSR characterizations)