Cedric Hayes pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 22(g)(1). He now challenges his sentence, arguing that the district court erred in applying an enhancement to his base offense level under § 2K2.1(b)(4)(B) of the
I. BACKGROUND
On February 2, 2016, a grand jury indicted Hayes on two counts of being a felon in possession of a firearm. On June 28, 2016, as part of a plea agreement, Hayes pleaded guilty to Count Two of the indictment, which specifically charged him with possessing a model AK-47 rifle.
In its recitation of the facts, the plea agreement stated that the serial number on the AK-47 “had been covered by a paint-like substance that prevented the serial number from being visible.” It was the government’s position that Hayes’ offense level should increase by four, pursuant to § 2K2.1(b)(4)(B) of the Guidelines, because the serial number was “altered or obliterated.” The plea agreement noted, however, that Hayes disagreed that the enhancement should apply.
Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR’s factual findings repeated the statement from the plea agreement that the serial number was not visible because it was covered by a “paint-like substance.” Based on that finding, the PSR recommended that the court apply the § 2K2.1(b)(4)(B) enhancement.
In his sentencing memorandum, Hayes conceded that the AK-47’s serial number was covered in a paint-like substance, but argued that because the serial number was not “physically altered,” the enhancement should not apply. As support for that argument, Hayes noted that the Forensic Science Laboratory of the Bureau of Alcohol, Tobacco, Firearms, and Explosives applied a “chemical solvent and light polishing” to the gun, which ultimately revealed the serial number.
On October 17, 2016, the district court held a sentencing hearing. The court acknowledged Hayes’ objection, but accepted the position of the PSR and the government that the AK-47’s serial number was “altered or obliterated” for purposes of § 2K2.1(b)(4)(B). The court adopted the Guidelines calculation contained in the PSR, finding that Hayes’ offense level was 28, and his criminal history category was five. The resulting Guidelines range was 84 to 105 months’ imprisonment. After hearing from Hayes and addressing the factors to be considered under 18 U.S.C. § 3553(a), the court imposed a sentence of 94 months’ imprisonment. Hayes timely appealed.
II. DISCUSSION
A. Base Offense Level Enhancement
Hayes’ first argument on appeal is that the district court erred in finding that the AK-47’s serial number had been “altered or obliterated” pursuant to § 2K2.1(b)(4)(B) of the Guidelines. “We review de novo the district court’s legal interpretation of sentencing guidelines and review factual findings for clear error.” United States v. Harris,
As an initial matter, Hayes contends that the court improperly accepted as true, without requesting additional evidence, the fact that the gun’s serial number was covered by paint. There is simply no merit to this argument because, although challenging the applicability of the enhancement, Hayes had conceded the underlying factual basis multiple times. He signed the plea
We turn, then, to the issue of whether § 2K2.1(b)(4)(B)’s use of “altered or obliterated” contemplates a serial number that has been covered by a substance that prevents it from being visible. Neither the Guidelines nor their Application Notes provide definitions of “altered or obliterated” or any other helpful guidance. We have, however, previously addressed the parameters of this language, albeit in an unpublished opinion.
In United States v. Salinas, we held that “a firearm’s serial number is ‘altered or obliterated’ for purposes of § 2K2.1(b)(4)(B) if it has been ‘materially changed in a way that makes accurate information less accessible.’ ”
On the record before us, the extent of what we know about the serial number is that it was not visible because it was covered with a “paint-like substance,” and that forensic specialists had to use a “chemical solvent” to uncover it. Based on that limited factual detail, we conclude that the AK-47’s serial number was materially changed in a way that made the accurate information less accessible. Therefore, the § 2K2.1 (b)(4)(B) enhancement should apply-
In reaching that conclusion, we reject Hayes’ interpretation of the “altered or obliterated” language, which would limit its application to cases where the serial number has been completely destroyed or where one digit has been changed to another. Instead, we agree with the Ninth Circuit’s assessment that “[i]rrespective of how ‘obliterated’ is construed, ‘altered’ surely requires a lesser degree of defacement.” Carter,
Hayes’ proposed construction also belies the underlying purposes of
B. Criminal History Calculation
Hayes’ second argument on appeal is that the district court erred in assessing three criminal history points based on a prior state-court conviction for aggravated unlawful use of a weapon. Hayes failed to object to the criminal history calculation in the district court, but the government does not contend that he waived his argument. Typically, where a defendant does not object to his criminal history calculation in the district court, we treat the objection as forfeited and review for plain error. See, e.g., United States v. Brown,
In 2003, Hayes was convicted in Illinois state court of aggravated unlawful use of a weapon, in violation of 720 ILCS 5/24-1.6. Based on that conviction, the PSR recommended, and the district court assessed, three criminal history points in Hayes’ Guidelines calculation. After the 2003 conviction, however, both this Court and the Illinois Supreme Court have held that the Illinois statute is unconstitutional. See Moore v. Madigan,
Hayes argues, and the government agrees, that the court erred in assessing criminal history points based on a conviction under an unconstitutional statute. Indeed, the Guidelines themselves instruct that convictions that are ruled unconstitutional are not to be counted in calculating a defendant’s criminal history. U.S.S.G. § 4A1.2, Application Note 6. Thus, we agree that the court erred in assessing criminal history points based on this conviction. See United States v. Jenkins,
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s application of the base offense level enhancement under U.S.S.G. § 2K2.1(b)(4)(B), but REMAND for resen-tencing based on the improper assessment of criminal history points for Hayes’ prior conviction under 720 ILCS 5/24-1.6.