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Fifth Circuit Announces Altered Serial Number Enhancement Does Not Apply Where Gun Never Had Serial Number

by Richard Resch

The U.S. Court of Appeals for the Fifth Circuit joined four of its sister Circuits in holding that U.S. Sentencing Guideline § 2K2.1(b)(4)(B) does not apply in cases where the firearm in question never had a serial number.

A Houston Police Department officer conducted a traffic stop on a vehicle traveling at a high rate of speed driven by Nolan Sharp. As the officer approached the vehicle, he saw a handgun on Sharp’s lap and confiscated it. A search of his vehicle produced a loaded .223 semi-automatic short-barreled rifle with no serial number by an unknown maker. 

Sharp pleaded guilty to possession of a firearm by a convicted felon. His Pre-Sentence Report calculated a base offense level of 14, and it applied the four-level enhancement under Guideline § 2K2.1(b)(4)(B) for possessing a firearm that “had an altered or obliterated serial number.”

Sharp filed an objection to the enhancement, arguing that it was inapplicable because there is no evidence that the rifle ever had a serial number so it was not possible for the serial number to have been “altered or obliterated” as provided for in the enhancement provision. His attorney raised the objection again at sentencing. The Government countered that the enhancement still applies because it covers untraceable weapons and the absence of a serial number renders the rifle at issue an untraceable weapon.

The U.S. District Court for the Southern District of Texas overruled the objection, agreeing with the Government that the enhancement provision is concerned with “untraceable and unmarked guns” and thus it applies in this case. He timely appealed.

On appeal, the Government supported Sharp’s position and conceded that the District Court erred by applying the § 2K2.1(b)(4)(B) enhancement. Both Sharp and the Government requested that the Court remand the case for resentencing.

The Court began its analysis by examining the plain text of § 2K2.1(b)(4)(B). It observed that the text at issue is unambiguous and thus its “inquiry begins and ends with the text.” Quoting Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013). 

The Court determined that the enhancement provision clearly applies only when the firearm “had an altered or obliterated serial number.” § 2K2.1(b)(4)(B). In ordinary usage, something can only be “altered or obliterated” if it existed in the first place, the Court reasoned. See Matter of Lopez, 897 F.3d 663 (5th Cir. 2018) (“When terms used in a statute are undefined, we give them their ordinary meaning.”). Consequently, the Court explained that the enhancement provision is applicable in this case only if the Government can establish that the rifle once had a serial number, but there is no such evidence. Thus, the Court held that the District Court “erred in applying a four-level enhancement under § 2K2.1(b)(4)(B).”

Accordingly, the Court vacated Sharp’s sentence and remanded to the District Court. See: United States v. Sharp, 2023 U.S. App. LEXIS 6624 (5th Cir. 2023).

Writer’s note: Four other Circuits that have ruled on this issue have reached the same conclusion as the Fifth Circuit did in this case, viz., § 2K2.1(b)(4)(B) does not apply in situations where the firearm never had a serial number. United States v. Mann, 701 F.3d 274 (8th Cir. 2012); United States v. Laughrin, 438 F.3d 1245 (10th Cir. 2006); United States v. Seesing, 234 F.3d 456 (9th Cir. 2000); United States v. Bakhtiari, 913 F.2d 1053 (2d Cir. 1990).

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