Sixth Circuit Adopts ‘Naked Eye Test’ for Altered Firearm Serial Number Enhancement
by Dale Chappell
The U.S. Court of Appeals for the Sixth Circuit adopted a “naked eye test” in holding that a firearm’s serial number is not “altered or obliterated” for a sentencing enhancement if a person must “squint” to view the number, but it’s still readable, overturning a district court’s more liberal interpretation of USSG § 2K2.1(b)(4)(B).
“What, then, does it mean for a serial number to be altered?” That was the question the Court had to answer when Charles Sands appealed the application of a four-level enhancement under the U.S. Sentencing Guidelines (“USSG”) by the district court in finding that the serial number on a firearm he possessed was altered.
Sands was originally charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g) and for possessing a firearm that had a serial number that was “removed, obliterated, or altered, under 18 U.S.C. § 922(k). He agreed to plead guilty to the § 922(g) charge, and the Government agreed to drop the § 922(k) charge. However, that didn’t stop the Government from pursuing an enhancement under the USSG for the supposedly altered serial number, significantly increasing his guideline sentencing range (“GSR”).
The enhancement was applied by Judge Paul Maloney of the U.S. District Court for the Western District of Michigan, who agreed with the probation officer’s response to Sands’ objections to the presentence investigation report (“PSR”), that the serial number was “significantly defaced, but admittedly still readable; albeit barely.”
At sentencing, Judge Maloney, looking at pictures of the firearm’s serial number provided by the parties, said that the serial number was “clearly made less legible and is clearly altered for the purpose of trying to mask the identity of this weapon.” He said it was “more difficult to read, at least on the photograph that I have in front of me right now, than if the weapon was clean” and concluded that “I think it meets the standard” under the USSG.
The enhancement increased Sands’ GSR to 70 to 87 months. Without it, he faced a range of 46 to 57 months. The district court imposed a sentence of 78 months in prison. Sands timely appealed.
Under USSG § 2K2.1(b)(4)(B), a district court may increase the GSR by four levels if just one of the serial numbers on the firearm is “altered or obliterated,” regardless of whether the possessor was aware of it. The issue here was whether the serial number on Sands’ firearm was “altered” for purposes of § 2K2.1(b)(4)(B) since the parties had agreed that it was not “obliterated.”
The Sixth Circuit looked at case law from other circuits and various dictionaries to answer the question of what it means for a serial number to be “altered” since § 2K2.1(b)(4)(B) does not define the term. Finding that these sources generally define the word ‘altered’ to mean to “become different,” the Court then turned to the purpose of the Guideline: “to discourage the use of untraced weaponry.” The Court reasoned that applying § 2k2.1(b)(4)(B) to any “change or modification” of a firearm’s serial number, as the district court suggested, would then be “clearly at odds” with the purpose of the Guideline. The Court noted that it would actually give an increased sentence to someone makes a serial number easier to read on a firearm.
Instead, the Court held that a serial number is “altered or obliterated” when it is “materially changed in a way that makes accurate information less accessible.” The Court further held that “a serial number that is visible to the naked eye is not ‘altered or obliterated’ under § 2k2.1(b)(4)(B), even if it does make the serial number’s information technically ‘less accessible’ by requiring one to squint or view the number from a closer position.”
The Court observed that its position on this issue is in line with the other circuits that have addressed it and adopted the standard. United States v. Hayes, 872 F.3d 843 (7th Cir. 2017); United States v. Jones, 643 F.3d 257 (8th Cir. 2011); United States v. Perez, 585 F.3d 880 (5th Cir. 2009) (although adopted this standard, its application viewed as an outlier that’s been rejected by other circuits); United States v. Carter, 421 F.3d 909 (9th Cir. 2005). The Court also noted that other circuits “have cited it [the standard] approvingly and reached consistent holdings.” United States v. Harris, 720 F.3d 499 (4th Cir. 2013); United States v. Justice, 679 F.3d 1251 (10th Cir. 2012); United States v. Love, 364 Fed. Appx. 955 (6th Cir. 2010); United States v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015).
The Court defined its “naked eye test” as “any person with basic vision and reading ability [who] would be able to tell immediately whether a serial number is legible.” This means that the serial number must be legible without the aid of microscopes or special chemicals, the Court explained.
Applying the newly announced naked eye standard to the present case, the Court ruled that the district court “erroneously applied the enhancement after finding that the serial number remained visible to the naked eye.”
Accordingly, the Court vacated Sands’ sentence and remanded for resentencing. See: United States v. Sands, 948 F.3d 709 (6th Cir. 2020).
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Related legal case
United States v. Sands
|Cite||948 F.3d 709 (6th Cir. 2020)|
|Level||Court of Appeals|