US v. Norman Seneka Bowers

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00458-NCT-1 Copies to all parties and the district court/agency. [999618306].. [15-4063]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4063

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN SENEKA BOWERS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00458-NCT-1)

Submitted:

June 12, 2015

Decided:

July 10, 2015

Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Greensboro, North Carolina, Terry M. Meinecke, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, WinstonSalem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Norman Seneka Bowers (Bowers)
pled

guilty

to

possession

of

a

conviction, 18 U.S.C. § 922(g)(1).

firearm

after

a

felony

At sentencing, over Bowers’

objection, the district court applied a four-level enhancement
under

United

States

Sentencing

Commission,

Guidelines

Manual

(USSG), § 2K2.1(b)(4)(B) to Bowers’ offense level because the
firearm

he

application

possessed
of

the

had

an

altered

§ 2K2.1(b)(4)(B)

serial

number.

enhancement

The

increased

Bowers’ sentencing range from 46 to 57 months’ imprisonment to
70 to 87 months’ imprisonment.
imprisonment.

He was sentenced to 78 months’

On appeal, Bowers challenges the district court’s

application of the § 2K2.1(b)(4)(B) enhancement.

We affirm.

I
On December 7, 2013, in Lexington, North Carolina, Bowers
fled on foot following a stop of his vehicle by then-Officer
Jason

Pardue

Department.

(Officer

Pardue)

of

the

Lexington

Police

During the chase, Officer Pardue tackled Bowers,

and a struggle ensued.

After Bowers pointed a gun at Officer

Pardue, Officer Pardue punched Bowers in the face which caused
Bowers to fall to the ground.
placed under arrest.

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Bowers was then subdued and

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The gun recovered at the scene was examined by ATF Special
Agent Matt Amato.

Such examination revealed that the serial

number on the gun had been altered in that three of the five
digits comprising the gun’s serial number had “gouges” in them
making them “unreadable.”

(J.A. 80).

On December 16, 2013, a federal grand jury in the Middle
District

of

North

Carolina

charged

Bowers

with

possessing

a

firearm after a felony conviction, 18 U.S.C. § 922(g)(1), and
with possessing a firearm with a serial number that had been
altered or obliterated, id. § 922(k).

Bowers pled guilty to the

§ 922(g)(1) offense.
In preparation for sentencing, a presentence investigation
report was prepared by a United States Probation Officer.
probation

officer

recommended

that

Bowers’

offense

level

The
be

enhanced four levels under USSG § 2K2.1(b)(4)(B) because the gun
he possessed had an altered serial number.

Bowers objected to

the § 2K2.1(b)(4)(B) enhancement on the basis that he had no
knowledge of the serial number being altered.
the

district

court

overruled

the

objection.

At sentencing,
Following

the

imposition of a 78-month sentence, the district court entered
judgment from which Bowers now appeals.

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II
Bowers challenges the district court’s application of the
§ 2K2.1(b)(4)(B) enhancement to his offense level.

According to

Bowers, § 2K2.1(b)(4)(B) requires the government to prove that,
at

the

time

knowledge

the

that

obliterated.

defendant

the

serial

possessed

number

on

the

the

firearm,

gun

was

he

altered

had
or

Since the government did not offer proof of such

knowledge at his sentencing, Bowers posits that the district
court erred in applying the enhancement.
In applying enhancements under the Sentencing Guidelines,
the district court employs the preponderance of the evidence
standard, not the reasonable doubt standard.

United States v.

Battle, 499 F.3d 315, 322–23 (4th Cir. 2007).

In considering

the district court’s application of the Sentencing Guidelines,
we review factual findings for clear error and legal conclusions
de novo.

United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006).
Section

2K2.1(a)(4)(A)

of

the

Sentencing

Guidelines

provides a base offense level of 20 when a defendant with one
prior felony conviction for either a crime of violence or a
controlled
firearm.
qualifying

substance

offense

is

convicted

of

possessing

a

This Guideline applied to Bowers because he had a
prior

controlled

substance

offense.

Section 2K2.1(b)(4) of the Sentencing Guidelines provides for a
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two-level

enhancement

firearm,
where

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USSG

the

serial

§ 2K2.1(b)(4)

the

§ 2K2.1(b)(4)(A),

defendant

obliterated

where

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possessed
number,

defendant
and

a

four-level

firearm

id.

enhancements

a

possessed

with

an

“regardless

of

stolen

enhancement
altered

§ 2K2.1(b)(4)(B).

apply

a

The

or

USSG

whether

the

defendant knew or had reason to believe that the firearm was
stolen or had an altered or obliterated serial number.”

Id.

§ 2K2.1,

the

comment.

(n.8(B)).

§ 2K2.1(b)(4)(B)

enhancement

had

serial

an

altered

enhancement
three-level

for

The

because

number.

obstruction

downward

district
the

Bowers

of

justice,

adjustment

court

gun

Bowers

received
id.

for

applied

a

possessed
two-level

§ 3C1.2,

and

acceptance

a
of

responsibility, id. § 3E1.1(a), (b), resulting in a sentencing
range of 70 to 87 months’ imprisonment, using Bowers’ Criminal
History Category IV.
Bowers
December

7,

does
2013

not
had

dispute
an

that

altered

the
serial

gun

he

number.

possessed
Under

on
the

Guidelines’ commentary, there is no requirement that he have any
knowledge, or reason to believe, the gun had an altered serial
number.

Id.; see also United States v. Perez, 585 F.3d 880, 883

(5th Cir. 2009) (“This court has continually enforced the clear
and

unambiguous

language

of

§ 2K2.1(b)(4)

and

its

strict

liability standard.”); United States v. Statham, 581 F.3d 548,
553 (7th Cir. 2009) (“[The defendant] need not have known that
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serial

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numbers

had

been

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removed

from

the

weapons.”);

United

States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008) (holding that
§ 2K2.1(b)(4)
United

is

States

(holding

v.

that

enhancement

a

strict

Murphy,

liability
96

F.3d

§ 2K2.1(b)(4)

provision

requirement’” in

and

846,

is

that

the

enhancement
849

a

provision);

(6th

Cir.

“‘strict

“‘omission

1996)

liability’”

of

a

mens

rea

§ 2K2.1(b)(4) “‘does not violate due process’”

(quoting United States v. Goodell, 990 F.2d 497, 499 (9th Cir.
1993))).

Thus,

the

district

court

properly

applied

the

§ 2K2.1(b)(4)(B) enhancement to Bowers’ offense level.
Notwithstanding the plain language of § 2K2.1’s commentary
and the persuasive circuit authority cited above, Bowers points
us

to

the

Roxborough,

99

argument.
firearms

Sixth
F.3d

with

(6th

obliterated

Cir.

were

firearms dealer.

At

United

1996),

serial

numbers

pled

traced
Id.

guilty

back

to

the

in

States

support

of

v.
his

from

an

individual.

his

defendant,

a

licensed

With regard to these two firearms, the
to

dealing

in

licensed premises, 18 U.S.C. § 922(c).
213.

in

When the obliterated serial numbers were restored,

firearms

defendant

212

decision

In Roxborough, undercover ATF agents purchased two

Id. at 213.
the

Circuit’s

sentencing,

the

firearms

away

from

his

Roxborough, 99 F.3d at

defendant’s

offense

level

was

enhanced because the serial numbers on the firearms had been
obliterated.

Id.

Notably, the government could not establish
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that the serial numbers had been obliterated by the defendant or
that

the

serial

firearms.

Id.

numbers

were

obliterated

On these facts, the

when

he

sold

the

Roxborough court declined

to uphold the district court’s application of the enhancement.
Id. at 214-15.
Bowers’ reliance on Roxborough is misplaced.
decision

in

Roxborough

conflicts

with

the

First, the

plain

language

of

§ 2K2.1’s commentary which clearly states that the § 2K2.1(b)(4)
enhancements apply regardless of whether the defendant knew or
had reason to believe that the firearm was stolen or had an
altered

or

obliterated

serial

number.

Second,

the

court

in

Roxborough considered it important that the government could not
prove that the firearms’ serial numbers were obliterated at the
time of the offense.

Id. at 214 (stating that there was “no

evidence at sentencing either that Roxborough obliterated the
serial

numbers

or

that

the

firearms

numbers at the time that he sold them”).

had

obliterated

serial

In our case, there is

no dispute that the gun’s serial number was altered at the time
Bowers

committed

his

offense.

Third,

the

Sixth

Circuit

has

declined to follow Roxborough on the basis that it conflicts
with

its

earlier

decision

in

Murphy,

which

held

§ 2K2.1(b)(4) is a strict liability enhancement provision.
United States v. Burns, 109 Fed. App’x
(“To

the

extent

that

Roxborough
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that
See

52, 57 (6th Cir. 2004)

conflicts

with

the

earlier-

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Murphy,

we

are

not

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constrained

to

follow

it.”).

Consequently, Roxborough is of no help to Bowers.

III
For

the

reasons

stated

herein,

we

conclude

that

the

district court did not err when it applied the § 2K2.1(b)(4)(B)
enhancement to Bowers’ offense level.
of

the

district

court

is

affirmed.

Accordingly, the judgment
We

dispense

with

oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

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