US v. Timothy Joelette Harri

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-cr-00376-BO-1. [999138261]. [12-4521]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4521

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY JOELETTE HARRIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-cr-00376-BO-1)

Argued:

May 16, 2013

Decided:

June 26, 2013

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion.
Judge Niemeyer wrote
opinion, in which Judge Gregory and Judge Shedd joined.

the

ARGUED:
James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

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NIEMEYER, Circuit Judge:
After

Timothy

Harris

pleaded

guilty

to

two

counts

of

possession of firearms by a felon, in violation of 18 U.S.C.
§ 922(g),

the

district

imprisonment.
under

the

U.S.S.G.

In

computing

Sentencing
§

court

sentenced
the

applicable

Guidelines,

2K2.1(b)(4)(B),

him

the

which

to

months’

sentencing

district

provides

105

court

for

a

range

applied

four-level

enhancement if a firearm “had an altered or obliterated serial
number.”
of

the

The district court found that the serial number on one
firearms

scratched,

possessed

rendering

it

by
less

Harris

had

legible,

been
but

gouged

and

arguably

not

illegible.
Harris contends that, even though the district judge was
unable to read the serial number correctly at the sentencing
hearing, the police report indicated that the serial number was
nonetheless legible.

With this factual record, he contends that

§ 2K2.1(b)(4)(B) does not apply because no material change was
made to the serial number.
We

conclude

restrictively
illegible

to

in
be

that

Harris

suggesting
“altered.”

reads

that
As

we

a

§

2K2.1(b)(4)(B)

serial
explain

number
herein,

must
a

too
be

serial

number that is made less legible is made different and therefore
is altered for purposes of the enhancement.
affirm.
2

Accordingly, we

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I
After using a gun to threaten a woman during the course of
an argument in Raleigh, North Carolina, police officers arrested
Harris and recovered a .25 caliber handgun from him.

The police

report described the condition of the gun:
It appears that the serial number on the gun was
altered and the fact that there are numerous deep
gouges and scratches across the width of the alpha
numerics it appears that this was done with some sort
of tool. However, the numbers are still legible.
Based on this incident and another, Harris was indicted for
and

pleaded

presentence

guilty
report

to

illegal

recommended

a

firearms
four-level

possession.
enhancement

The
under

U.S.S.G. § 2K2.1(b)(4)(B) for possession of a firearm that had
an altered or obliterated serial number.
presentence

report’s

recommendation,

Harris objected to the

contending

that

“because

the serial number of the firearm was legible, the firearm was
traceable, and therefore the enhancement does not apply.”
At
Harris’

the

sentencing

objection

considering

the

and

police

hearing,
applied
report,

the

district

the
the

court

overruled

enhancement.

After

court

conducted

its

own

examination of the handgun in the courtroom with the parties
present and made the following factual findings:
[T]he gun was placed on the bench in front of
[me] about 18 inches away and . . . I was not able to
read the correct serial number.
I read and looked
carefully and the serial number that I wrote down from
my observation was U032076. And, in fact, the actual
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serial number that was determined through more careful
and more scientific examination was U022078.
And it appears on the real evidence, on the gun
itself, that there are gouges in the metal and
scraping along the line of the serial number, but not
similar marks on other places on the metal barrel,
neither around the serial number, nor on the other
side of the barrel. So that the reasonable inference
is that the gouging and scraping around the serial
number was intended to affect the ability to literally
read the serial number not an accidental thing.
There isn’t any evidence that the defendant did
this, but there is evidence that the serial number was
obliterated.
And so, I’ll include the four level
enhancement.
After applying the enhancement in its calculation of the
recommended sentencing range, the court sentenced Harris to 105
months’

imprisonment,

which

fell

within

the

Sentencing

Guidelines range.
This appeal followed.

II
This appeal presents the single question of whether the
serial number on Harris’ handgun, which was marked with gouges
and

scratches

legible,

was

§ 2K2.1(b)(4)(B)

that

the

“altered,”

district
within

(providing

for

court
the
a

found

made

meaning

of

four-level

it

less

U.S.S.G.
sentencing

enhancement for the possession of a firearm when a firearm has
an “altered or obliterated serial number”).
Harris contends that a serial number is not “altered,” even
though gouged and scratched, if it remains legible.
4

He argues

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that “altered” requires that the serial number be “materially
changed”

so

that

Because

the

Harris’

handgun

it

police
was

is

not

report

discernible

stated

legible,

he

that

to
the

argues

the

unaided

serial

that

the

eye.

number

on

enhancement

should not have been applied.
The

government,

relying

on

the

district

court’s

finding

that it could not accurately read the handgun’s serial number
when the handgun was placed on the bench before it, contends
that “at least one of the numbers” had been “obliterated” so
that the serial number was at least “altered.”

It argues that

the gouges and scratches were “both purposeful and deep enough
that the firearm’s serial number was rendered more difficult to
ascertain

accurately

than

it

would

have

been

absent

the

scratch[es].”
While other courts of appeals have variously addressed what
is required to render a serial number “altered,” we have no
published opinion that does so.
The Gun Control Act of 1968 makes it a crime to “possess or
receive

any

firearm

which

has

had

the

importer’s

or

manufacturer’s serial number removed, obliterated, or altered.”
18 U.S.C. § 922(k).

Although Harris was not charged with a

violation

of

§

922(k),

enhanced

by

application

his
of

recommended
a

sentencing

mimicking

range

provision

in

was
the

Sentencing Guidelines, that provided for a four-level sentencing
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enhancement for possession of a gun with the serial number that
had been “altered or obliterated.”

U.S.S.G. § 2K2.1(b)(4)(B).

The Gun Control Act requires importers and manufacturers to
identify each firearm imported or manufactured with “a serial
number engraved or cast on the receiver or frame of the weapon,
in

such

manner

prescribe.”

as

the

Attorney

or

shall

by

regulations

18 U.S.C. § 923(i); see also National Firearms Act

of 1968, 26 U.S.C. § 5842(a).
importer

General

manufacturer

“conspicuously”

placing

Regulations require that the

“legibly
the

receiver of the firearm.

identify

serial

number

each
on

firearm”

the

frame

by
or

27 C.F.R. § 478.92(a)(1) (emphasis

added) (implementing the Gun Control Act); see also 27 C.F.R. §
479.102(a) (implementing the National Firearms Act).

And the

regulations ensure legibility and conspicuousness by prescribing
the

minimum

size

and

depth

of

the

serial

number.

See

id.

(requiring serial numbers to be in print no smaller than onesixteenth of an inch and in depth no less than .003 inch).
depth also ensures permanence.
Firearms

and

Explosives

has

The

The Bureau of Alcohol, Tobacco,
explained

that

requiring

serial

numbers on firearms serves the important governmental interests
of

enabling

the

tracking

of

inventory

and

record-keeping

by

licensees; tracing specific firearms used in crimes; identifying
firearms that have been lost or stolen; and assisting in the
prosecution of firearm offenses.
6

See ATF Ruling 2009-5.

To

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these ends, 18 U.S.C. § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B)
serve the government’s interest in preserving the legibility and
permanence

of

possession

of

serial
a

numbers

firearm

on

with

a

firearms
serial

by

punishing

number

that

has

the
been

altered or obliterated.
Focusing on the term “altered,” Harris argues rationally
that a serial number is altered when it is rendered illegible
such

that

it

cannot

be

traced,

one

of

purposes for requiring serial numbers.

the

most

important

See ATF Ruling 2009-5;

see also, e.g., United States v. Carter, 421 F.3d 909, 914 (9th
Cir. 2005) (“[Section] 2K2.1(b)(4) intends to ‘discourag[e] the
use of untraceable weaponry’” (quoting United States v. Seesing,
234 F.3d 456, 460 (9th Cir. 2000))); United States v. Jones, 643
F.3d

257,

259

(8th

§ 2K2.1(b)(4)(B)’s
firearms

in

the

Cir.

purpose
black

to

2011)
stem

market”).

(“We

the

must

flow

While

of

Harris’

respect

untraceable
argument

is

undoubtedly correct as far as it goes, it still leaves open the
question

whether

“obliterated,”
illegible

but

“altered,”

also
is

which

includes

less

a

legible

is

serial
than

it

less

demanding

than

that

is

not

without

the

number
would

be

gouges and scratches.
Legibility is one of the most essential characteristics of
a

serial

number,

as

is

reflected

in

the

serial-number

regulations, which require that serial numbers be of a specified
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size and depth.
reflect
placed

the
on

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In imposing these requirements, the regulations

government’s

firearms

that

interest
have

a

in

minimum

having

serial

level

of

numbers

legibility.

Thus, possession of a firearm that is less legible than that
level frustrates the purpose of serial numbers and therefore is
targeted by § 922(k) and § 2K2.1(b)(4)(B).
These observations are confirmed by the provisions’ use of
the words “altered” and “obliterated” and the generally accepted
meanings of those words.
different

in

changing

some

into

To “alter” is “to cause to become

particular

something

characteristic

else.”

.

.

Webster’s

.

without

Third

New

International Dictionary 63 (1993); see also The Random House
Dictionary of the English Language 60 (2d ed. 1987) (defining
“alter”

as

“to

style,

course,

make
or

different
the

like;

in

some

particular,

modify”);

as

size,

Merriam-Webster’s

Collegiate Dictionary 35 (11th ed. 2007) (defining “alter” as
“to make different without changing into something else”).
of

the

definitions

“altered”

when

“Obliterate,”
“undecipherable
International

in

it

of

“alter”
is

made

contrast,
or

is

recognizes

“different”
defined

imperceptible.”

Dictionary

1557.

that

as

something

in
making

Webster's

Accordingly,

Each

when

some

is

way.

something
Third
a

New

serial

number is made less legible, it is altered but not obliterated.

8

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Thus,

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the

while

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of

possession

a

firearm

with

a

serial

number that is no longer legible and conspicuous falls in the
heartland of § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B), a serial
number

that

illegible,

is

less
also

is

legible
covered

§ 2K2.1(b)(4)(B).
rendered

less

This

legible

or

less

by

conspicuous,
922(k)

interpretation

by

gouges

and

and

U.S.S.G.

that

§

but

serial

a

scratches

is

not

number

“altered”

prevents the word “obliterated” from becoming superfluous.
This is the conclusion that has been reached by a majority
of the courts of appeals.

See, e.g., Carter, 421 F.3d at 910

(holding that “for the purposes of Guideline § 2K2.1(b)(4), a
firearm’s serial number is ‘altered or obliterated’ when it is
materially changed in a way that makes accurate information less
accessible”

(emphasis

added));

Jones,

643

F.3d

at

259

(“A

partially ‘filed off’ or ‘scratched away’ serial number, which
is not visible to the naked eye, falls well within the statutory
scheme”); United States v. Justice, 679 F.3d 1251, 1254 (10th
Cir. 2012) (“What matters is what is ‘perceptible,’ not what can
be discerned by sophisticated scientific techniques”).
United

States

v.

Perez,

585

F.3d

880,

885

(5th

But see

Cir.

2009)

(applying § 2K2.1(b)(4) where serial number had been scratched
but

remained

“readable,”

because

“the

serial

number

on

[defendant’s] firearm looked like someone ‘tried to file [it]
off’”).
9

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In this case, the district court, which was the factfinder
for purposes of applying § 2K2.1(b)(4)(B), found that the .25
caliber handgun possessed by Harris had gouges and scratches
across

the

serial

serial

number

“carefully.”
markings

number

correctly,
Moreover,

on

that

the

it

handgun,

precluded

even

as

found

it

it

from

reading

attempted

that

there

were

that

indicating

to

the

no

found

that

these

gouges

and

scratches

made

so

further

gouges

scratches across the serial number were intentional.
thus

do

the

and

The court
the

serial

number less legible than it would have been without the gouges
and scratches.
With these findings, we conclude that the district court
did not err in applying the § 2K2.1(b)(4)(B) enhancement because
the evidence supports the conclusion that the serial number had
been

“altered”

by

making

it

less

legible

and

therefore

different.
Harris

challenges

this

conclusion,

arguing,

in

essence,

that the police report indicated that “the numbers [were] still
legible” and therefore were not made different.
however, is unpersuasive for two reasons.

This argument,

First, there is no

evidence in the record as to how the Raleigh police read the
serial number on Harris’ handgun.

They could have examined the

number at a closer distance and under more intense light than
was the case when the district judge examined it, or they could
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have examined it aided by a magnifying glass or a microscope.
Under any hypothesis, however, the fact that they were able to
read the correct serial number does not controvert the district
court’s finding that the serial number was rendered less legible
by the gouges and scratches.

Indeed, even the police recognized

that the number was not pristine:
It appears that the serial number on the gun was
altered and the fact that there are numerous deep
gouges and scratches across the width of the alpha
numerics it appears that this was done with some sort
of tool.
Harris’ argument also fails to account for the fact that
the district court, not the Raleigh police, was the factfinder
and that we defer to the court’s fact findings unless they are
clearly erroneous.

Here, we conclude that the district court’s

findings are not clearly erroneous because the court examined
the handgun, as any factfinder would, and found that the serial
number had been gouged and scraped and that it was unable to
read the correct serial number when “carefully” examining it.
Finally, Harris challenges the district court’s factfinding
process, arguing that the district court, by viewing the handgun
at

a

distance

component

.

standard.”

.

of
.

18
into

inches,
what

“interject[ed]

should

be

a

a

simple,

subjective
objective

But examining the evidence is just what factfinders

do, and the process used by the district court in this case was
not

an

unreasonable

way

to

determine
11

the

legibility

of

the

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serial number on Harris’ handgun.

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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.
For

the

reasons

given,

we

affirm

the

judgment

of

the

district court.
AFFIRMED

12