UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES RAY SANDS, Defendant-Appellant.
No. 20-1652
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: July 16, 2021
21a0160p.06
Before: GRIFFIN, LARSEN, and NALBANDIAN, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). 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
ON BRIEF: Matthew S. Kolodziejski, LAW OFFICE OF MATTHEW S. KOLODZIEJSKI, PLLC, Troy, Michigan, for Appellant. Sean M. Lewis, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee.
GRIFFIN, Circuit Judge.
In his first appeal, defendant Charles Ray Sands challenged the district court‘s application of a four-level sentencing enhancement for possessing a firearm that had an “altered or obliterated serial number.” See
I.
Sands pleaded guilty to being a felon in possession of a firearm. United States v. Sands, 948 F.3d 709, 711 (6th Cir. 2020) (Sands I). The initial presentence investigation report (“PSR“) recommended that the district court apply
At the sentencing hearing, “the district court did not examine the weapon itself.” Id. Instead, it examined photographs that magnified the size of the gun. “The district court recognized that there was no binding [within-circuit] authority . . . on” what constituted an altered or obliterated serial number on a firearm. Id. Relying on out-of-circuit authority that the district court found persuasive, it made the following ruling:
[The firearm‘s serial number] 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.
Id. (citation omitted). The district court applied
In Sands‘s initial appeal, we concluded that the district court “erred in its interpretation and application of
Before the resentencing hearing, the government and defendant each filed a sentencing memorandum. In Sands‘s sentencing memorandum, he opposed the application of
II.
Defendant contends that the district court improperly calculated his Guidelines range by applying
Because defendant contests the district court‘s application of a sentence enhancement, “we review the district court‘s factual findings for clear error and its legal conclusions de novo.” United States v. Bailey, 973 F.3d 548, 571 (6th Cir. 2020) (emphasis omitted). A factual finding is clearly erroneous when we—after considering all of the evidence—are “left with the definite and firm conviction that a mistake has been committed” by the district court. Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985). Importantly, “[t]he question is not whether the finding is the best or only conclusion that can be drawn from the evidence, or whether it is the one which [we] would draw.” Id. Instead, “the test is whether there is evidence in the record to support the lower court‘s finding, and whether its construction of that evidence is a reasonable one.” Id.
III.
A.
Section
B.
Nothing about the district court‘s factual finding (or its process for making it) leaves us with the definite and firm conviction that the district court made a mistake. Hilltop Realty, 774 F.2d at 140. In Sands I, we gave the district court the choice to “reexamine the serial numbers on the firearm in question or rely on its prior factual findings.” 948 F.3d at 719. At the resentencing hearing, the district court opted for the former option and examined the firearm itself, which is the approach we recommended as the best practice. See id. at 719 n.2. The government, through its attorney, explained that the firearm‘s serial number appeared in three places: the receiver, the slide, and the block of the barrel. After examining the firearm, the district court found the following facts:
I cannot read this serial number in the two places that I‘ve referred to. It‘s clearly not readable on the receiver. And also in the other place that the Court asked [the government‘s attorney] to identify for me[,] [the slide], I cannot read the, moving left to right, I can‘t read the third digit or the fifth digit of the serial number.
The district court did precisely what we directed in Sands I. It examined the firearm itself with the naked eye, applied the applicable framework we had clarified in Sands I, and made a factual determination that the serial number was not readable in two of the three places it appeared on the firearm. We see no clear error with the district court‘s factual finding that the firearm bore a serial number that was altered.
Defendant, nevertheless, contends that the district court clearly erred for two reasons. We find neither one persuasive. First, defendant argues that the “factual finding at the resentencing hearing that the serial numbers were not readable directly conflicted with its previous finding at the initial sentencing that they were [readable].” This argument fails before it begins because we authorized the district court to “reexamine the serial numbers on the firearm in question” and make new factual findings, “or rely on its prior factual findings.” See Sands I, 948 F.3d at 719 (emphasis added). Moreover, contrary to defendant‘s assertion, the two sets of factual findings are reconcilable. At the initial sentencing hearing, the district court examined photos that depicted magnified versions of the firearm and applied an incorrect legal framework; at the resentencing hearing, however, the district court examined the firearm itself and applied the correct legal framework.
Second, Sands contends that because agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“)
* * *
Defendant‘s procedural reasonableness attack on his sentence hinged on demonstrating that the district court clearly erred when it concluded that the firearm‘s serial number was altered. Sands failed to make that showing; therefore, we conclude that his procedural reasonableness challenge fails.
IV.
For these reasons, we affirm the district court‘s judgment.