Friday, October 16, 2009

"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)

United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)

Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v. Carter (which, surprisingly enough, happened to be the first time that any appellate court had interpreted the terms in the context of the guideline):
Based on its interpretation of the provision’s plain language, legislative history as well as earlier decisions interpreting “altered or obliterated,”the Carter court held in conclusion that “for 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.” Carter, 421 F.3d at 916. We agree with the Ninth Circuit’s reasoning and holding in Carter.
In this case, a serial number that "looked like someone 'tried to file [it] off,' as the district court found, or that . . . 'appeared to be altered and partially obliterated, as if somebody had attempted to scratch the numbers off,' as the PSR stated"—but which was apparently still legible, with effort—fit the bill.

Another thing worth mentioning from Perez: an apparent circuit split concerning the §2K2.1(b)(6) enhancement for possessing a firearm "in connection with another felony offense." Evidently, the Third, Sixth, and Seventh Circuits have held "that classifying an offense that arose from the same conduct as 'another felony offense' under U.S.S.G. § 2.K2.1(b)(6) renders the word 'another' superfluous." But as the court notes, "we have previously rejected the Third, Sixth and Seventh Circuits’ line of reasoning, as those decisions all specifically recognize." Oddly, the court goes on to hold that "Perez’s possession of the weapon as a convicted felon is sufficiently distinct from his discharging the weapon in violation of TEX. PENAL CODE § 22.05(b) & (e) (Vernon 2004) to warrant the enhancement under U.S.S.G. § 2K2.1(b)(6)." So maybe the supposed split isn't as clear-cut as it seems.

Labels: ,


Post a Comment

<< Home