United States v. Harris, No. 12-4521
Decided: June 26, 2013
The Fourth Circuit affirmed the 105 month sentence imposed on Timothy Harris after he pleaded guilty to two counts of possession of firearms by a felon after the district court applied U.S.S.G. § 2K2.1(b)(4)(B). The court upheld the four-level enhancement for when a firearm “had an altered or obliterated serial number,” even though the firearms possessed by Harris had been gouged and scratched, “rendering it less legible, but arguably not illegible.”
Harris was arrested in Raleigh, North Carolina after he used a gun to threaten a woman during the course of an argument. The police recovered a .25 caliber handgun from him after the arrest and described the condition of the serial number on the gun as having “numerous deep gouges and scratches across the width of the alpha numerics” and that it appeared these marks were done “with some sort of tool.” However, the police report indicated that the serial number was nonetheless legible. Harris subsequently pleaded guilty to illegal firearms possession and the presentence report recommended a four-level enhancement based on the condition of the serial number. Harris objected because the serial number was still legible. At the sentencing hearing, the district court overruled Harris’ objection and, after considering the police report and examining the handgun itself, ruled that enhancement should be applied even though no evidence was offered to prove that Harris made the marks on the firearm.
On appeal, the Fourth Circuit addressed the single question, “whether the serial number on Harris’ handgun, which was marked with gouges and scratches that the district court found made it less legible, was ‘altered,’ within the meaning of U.S.S.G. § 2K2.1(b)(4)(B).” Harris’ main argument was that a serial number should not be considered “altered” when it otherwise remains legible. The Fourth Circuit first noted that it had yet to address this question, though other circuits had. The Fourth Circuit then discussed the Gun Control Act of 1968 which 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,” even though Harris was not charged with a violation of its provisions. However, according to the court, the applicable Sentencing Guidelines mimic the Gun Control Act’s provision in its language. After analyzing the policy behind the statute and the generally accepted meaning of the words “altered” and “obliterated,” the Fourth Circuit rejected Harris’ arguments. Instead, the Fourth Circuit agreed with the majority of courts and held that a firearm’s “serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” As a result, the Fourth Circuit agreed that the district court’s findings that the gouges and scratches on the serial number made it more difficult to read the numbers accurately and the fact that there were no other markings on the gun, indicating that the scratches and gouges were intentional, was enough to warrant the district court’s decision. Therefore, the Fourth Circuit concluded that the district court did not err in applying the four-level enhancement because the evidence supported the conclusion that the serial number had been “altered” by making it less legible.
– John G. Tamasitis