UNITED STATES OF AMERICA v. CHARLES RAY SANDS
No. 17-2420
United States Court of Appeals, Sixth Circuit
January 24, 2020
RECOMMENDED FOR PUBLICATION Pursuаnt to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0027p.06. Argued: December 5, 2018. Decided and Filed: January 24, 2020. Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:17-cr-00076-1—Paul Lewis Maloney, District Judge.
COUNSEL
ARGUED: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Sean M. Lewis, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Sean M. Lewis, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee.
GRIFFIN, J., delivered the opinion of the court in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 15–16; app. 1–2), delivered a separate dissenting opinion.
GRIFFIN, Circuit Judge.
After defendant Charles Sands рleaded guilty to being a felon in possession of a firearm, the district court applied a four-level sentence enhancement for possessing a firearm with an “altered or obliterated serial number” pursuant to
We now clarify the standard for
I.
When agents from thе Bureau of Alcohol, Tobacco, Firearms, and
A federal grand jury indicted Sands for being a felon in possession of a firearm, in violation of
The initial PSR recommended applying a four-level sentence enhancement pursuant
The probation officer opines the serial number on the .40 caliber firearm possessed by Mr. Sands was altered or obliterated. The serial number was defaced in three different locations. Based on a review of photographs of the firearm, the serial number in one of the locations appears to be totally obliterated and illegible. The serial number in the other two locations is significantly defaced, but admittedly still readable; albeit barely.
Before the sentencing hearing, the government and Sands both briefed the issue. The government included small photographs of the weapon‘s serial numbers in its sentencing memorandum. Sands introduced larger, clearer photographs. In light of these exhibits, the district court did not examine the weapon itself.
At the hearing, the district court recognized that there was no binding authority from this court on this issue and noted that the parties had relied on three out-of-circuit cases: United States v. Harris, 720 F.3d 499 (4th Cir. 2013), United States v. Carter, 421 F.3d 909 (9th Cir. 2005), and United States v. Adams, 305 F.3d 30 (1st Cir. 2002). Harris and Carter concerned
The Court finds the Adams case and the Harris case to be persuasive that the enhancement should be scored in this particular case. The Ninth Circuit goes a little bit farther, but the Court finds the Adams and Harris cases to be persuasive, and I intend to follow them as it relates to the serial number and the defacing of the serial number on the weapon that is involved in this particular case. It is clearly made less legible and is clearly altered for the purpose of trying to mask the identity of this weapon. The defendant‘s argument is that the numbers, albeit harder to read, are still readable. And to a certain extent with the exception of the left to right, the first six and the second six, in the Court‘s judgment, are much more difficult to read, at least on the photograph that I have in front of me right now, than if the weapon was clean, if you will, and not defaced. I think it meets the standard. The government has met their burden. Accordingly, the defendant‘s objection in this regard is overruled.
The district court then imposed a seventy-eight-month sentence. With the four-level enhancement, the guidelines range was seventy to eighty-seven months. Without it, the range would have been forty-six to fifty-seven months. Sands timely appealed.
II.
“In evaluating the district court‘s calculation of the advisory Guidelines range, we review the district court‘s factual findings for clear errоr and its legal conclusion de novo.” United States v. Lalonde, 509 F.3d 750, 763 (6th Cir. 2007). A factual finding is clearly erroneous “when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. McGee, 494 F.3d 551, 554 (6th Cir. 2007) (quoting Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). We review de novo “the district court‘s legal interpretation
III.
A.
At issue is the interpretation and application of a guideline provision. “In interpreting the Sentencing Guidelines, the traditional canons of statutory interpretation apply.” United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011). “Our analysis begins with the plain meaning and, if the language is unambiguous, ends there as well.” Perez v. Postal Police Officers Ass‘n, 736 F.3d 736, 740 (6th Cir. 2013). “If the text alone does not admit a single conclusive answer, we can draw on a broader range of interpretive tools.” Id. at 741 (citing Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 11–16 (2011)). Dictionaries lie within our toolbox. See, e.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 225 (1994).
If a weapon has multiple serial numbers, only one of them needs to be altered or obliterated for the enhancement to apply. “The text of the guideline requires only ‘an altered or obliterated serial number’ . . . [and] does not require that all of the gun‘s serial numbers be so affected.” United States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015). “In common terms, when ‘a’ or ‘an’ is followed by a restrictive clause or modifier, this typically signals that the article is being used as a synonym for either ‘any’ or ‘one.‘” United States v. Warren, 820 F.3d 406, 408 (11th Cir. 2016) (per curiam) (quoting United States v. Alabama, 778 F.3d 926, 932 (11th Cir. 2015)). Thus,
B.
The Guidelines do not define “altered” or “obliterated.” Carter, 421 F.3d at 911. We must therefore give the terms the ordinary meaning they had when
What, then, does it mean for a serial number to be “altered“? Dictionary definitions help answer this question. To “alter,” they tell us, is to “to make different in some particular, as size, style, course, or the like; modify” or “to change; become different or modify.” Random House Webster‘s Unabridged Dictionary 60 (2d ed. 2001); see Carter, 421 F.3d at 912–13 (collecting and discussing other definitions). An “altered” serial number is therefore one that has been changed, modified, or made different. And do the serial numbers on the gun Sands possessed fit that description? He says they don‘t beсause they fall within an entirely different category—one
We have previously noted that the Guidelines “offer no clear answer” regarding the “degree of alteration . . . required to meet the guideline definition” under
The most important and influential case on this issue is the Ninth Circuit‘s decision in United States v. Carter. The defendant in that case argued that a firearm‘s serial number can only be “altered” if it has a “changed meaning“—for example, a three completely changed to an eight. Carter, 421 F.3d at 912. Looking to dictionaries, the court noted that “Webster‘s defines ‘alter’ as ‘to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else.’ American Heritage similаrly defines alter as ‘[t]o change or make different; modify.‘” Id. (citations omitted). The court found that these definitions of “alter,” “which require some degree of change or modification, . . . capture its ordinary meaning.” Id. at 913. Because “alter” encompasses lesser changes than those resulting in a “changed meaning,” id., the court rejected the defendant‘s argument and held that for the purposes of
Looking to the guideline‘s purpose, the court stated that
Three other circuits have explicitly adopted the standard from Carter. United States v. Hayes, 872 F.3d 843, 846 (7th Cir. 2017); United States v. Jones, 643 F.3d 257, 259 (8th Cir. 2011); United States v. Perez, 585 F.3d 880, 885 (5th Cir. 2009). Several others, including ours, have cited it approvingly and reached consistent holdings. Harris, 720 F.3d at 503–04; United States v. Justice, 679 F.3d 1251, 1254 (10th Cir. 2012); Love, 364 F. App‘x at 959; see Serrano-Mercado, 784 F.3d at 850.
C.
We conclude that the standard from Carter is the correct method for applying
IV.
Applying the standard from Carter, we further hold that a serial number that is visible to the naked eye is not “altered or obliterated” under
A.
This position is consistent with nearly every other federal appellate decision on the issue. In Carter, the serial number in question was “not decipherable by the naked eye” but was “discernible with the use of microscopy.” Carter, 421 F.3d at 910 (internal quotation marks omitted). Applying the standard discussed above, the court held that the serial number was “altered or
In this court‘s unpublished decision, United States v. Love, the weapon‘s serial number was not readable to the naked eye either, as “at least three officers and lab technicians had difficulty determining the correct number,” “the numbers were not immediately distinguishable to the investigators,” and “more than one investigator came to a different conclusion as to the last number.” Love, 364 F. App‘x. at 960. And in United States v. Adams, the First Circuit concluded that “any change that makes the serial number appreciably more difficult to discern should be enough” to sustain a conviction under
These cases involved serial numbers in various states, after different techniques had been applied to deface or otherwise obscure them from view. But they are united by two critical facts: (1) none of the serial numbers were visible to the unaided eye and (2) each court upheld the application of
Only one case does not fit: the Fifth Circuit‘s decision in United States v. Perez. 585 F.3d 880. There, the court explicitly adopted the standard from Carter, but concluded that the district court properly applied
Turning to the instant case, Perez does not dispute that the serial number on his firearm looked like someone “tried to file [it] off,” as the district court found, or that it “appeared to be altered and partially obliterated, as if somebody had attempted to scratch the numbers off,” as the PSR stated. Accordingly, the district court did not err in finding that the serial number of the firearm Perez possessed had been materially changed in a way that made its accurate information
less accessible, and that it had been “altered or obliterated” for purposes of § 2K2.1(b)(4).
Id. at 885 (alteration in original). Based on this passagе, it is not entirely clear whether the court was evaluating the merits or ruling that the defendant had forfeited the issue by failing to dispute the PSR‘s statement that the serial number “appeared to be altered.” Also, the court improperly gave weight to the district court‘s finding that the serial number “looked like someone ‘tried to file [it] off,‘” id. at 885 (alteration in original), because
B.
In addition to comporting with the lion‘s share of precedent on the issue, our adoption of a “naked eye test” for applying
As this case aptly demonstrates, it may be difficult to determine, from a visual inspection alone, whether a serial number appears defaced is, in fact, untraceable when scientific means are employed. On the street, where these guns often trade and where microscopy is rarely available, one cannot readily distinguish between a serial number that merely looks untraceable and one that actually is. At that level it is appearances that count: A gun possessor is likely to be able to determine only whether or not his firearm appears more difficult, or impossible, to trace.
Carter, 421 F.3d at 914–15; see also United States v. Seesing, 234 F.3d 456, 460 (9th Cir. 2001). Applying
This “naked eye test” also draws a clear line that should lessen confusion and inconsistency in the guideline‘s application, while at the sаme time leaving the district courts with appropriate discretion to conduct necessary factfinding at sentencing. The Fourth Circuit‘s discussion in Harris illustrates this point. There, the defendant challenged the method by which the district court examined the serial number on the weapon, “arguing that the district court, by viewing the handgun at a distance of 18 inches, interjected a subjective component into what should be a simple, objective standard.” Harris, 720 F.3d at 504 (alteration, ellipsis, and internal quotation marks omitted). The Fourth Circuit properly rejected this argument:
But examining the evidence is just whаt factfinders do, and the process used by the district court in this case was not an unreasonable way to determine the legibility of the 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.
Id. A district court‘s factfinding procedures under this test will properly be reviewed for clear error.
After this case was submitted, another panel of this court decided United States v. Fuller-Ragland, in which the defendant challenged the application of the
Fuller-Ragland neither conflicts with nor controls our decision here for two reasоns. First, review of the district court‘s determinations in Fuller-Ragland was for plain error only, as the defendant in that case failed to raise an objection before the district court to the
Second, the record before the panel in Fuller-Ragland was quite different from the one we confront here. In Fuller-Ragland, the panel noted that no picture of the weapon was included in the record. Id. at 465. Instead, the parties had agreed—through their acceptance of the facts contained in the PSR—that the serial number on the firearm was “partially obliterated.” Id. (“Absent an objection, the district court can accept any undisputed portions of the PSR as a finding of fact.“). Thus, the panel “proceed[ed] with the understanding that the serial number on the 9mm pistol was ‘partially oblitеrated.‘” Id. at 465–66. Sands, by contrast, has never stipulated that the serial numbers on the firearm in this case were altered or obliterated, and the record contains multiple photographs of the weapon.
For these reasons, we find no conflict between our decision here and Fuller-Ragland.
V.
At the sentencing hearing in the present case, the district court made a factual finding that the serial number was still readable, but “much more difficult to read” because of the defacement. We find no clear error in that determination. But the court erred in its interpretation and application of
For these reasons, we vacate Sands‘s sentence and remand for resentencing. At resentencing, the district court may decide to reexamine the serial numbers on the firearm in question or rely on its prior factual findings.2 Either way, the district court should apply Carter and the “naked eye test” to determine whether the enhancement under
VI.
To summarize, we adopt the Ninth Circuit‘s framework in Carter and conclude that under
DISSENT
JULIA SMITH GIBBONS, Circuit Judge, dissenting.
I respectfully dissent.
The majority approaches this case by looking to standards adopted in other circuits for determining whether a serial number is “altered” within the meaning of
The primary flaw with both the Carter approach and the majority‘s addition is that they stray from the most obvious, and inherently correct, analysis. The word “altered”1 has well known dictionary meanings. It is a common word, understandable to most people. And, under a dictionary definition, the serial number at issue here is indeed altered because it has been “changed, modified, or made different.” (Majority opinion at 6). Photos of the serial number at issue here plainly demonstrate the alteration. See attached Appendix, pp. 1–2 (CA6 R. 23).
Carter engages in elaborate discussion of dictionary meanings, 421 F.3d at 912–13, and, while suggesting that it is following them, does not. The majority here refers to them as well. But it does not stop with
inconsistent with common sense and the plain language of the guideline. Sometimes, as here, fewer words and less effort at elaborate analysis, produce a sounder result.2
Oddly enough the Carter holding, if actually followed here, would produce a result different from that reached by the majority. The serial number here “is materially changed in a way that makes accurate information less accessible.” If that standard is applied, we would affirm the district cоurt. Yet, when the focus is changed, as it is by the majority opinion, to whether the naked eye can still discern the serial number, the serial number here is not altered. Certainly, the number is “less accessible,” but the naked eye can still read it, although with some difficulty.
In addition to the legal problem of going to great lengths to avoid the obvious meaning of a word, the result of narrowing the definition beyond the guideline language has another unfortunate consequence. The district judge is the fact finder and the district court the appropriate place for a determination of whether a serial number is altered. The district judge in this case performed his assigned task, and his conclusion that the serial number in this case was indeed altered is not clearly erroneous. Yet the majority‘s strained reading of the guideline renders it so. It is this court‘s “addition” that compels reversal. The serial number here “is visible to the naked eye” and thus, in the majority‘s view, it is “not obliterated or altered.”
We should affirm the district court‘s decision; I dissent because we do not.
No. 17-2420
Appendix to dissenting opinion of Gibbons, J., United States v. Sands
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No. 17-2420
Appendix to dissenting opinion of Gibbons, J., United States v. Sands
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