In United States v. St. Hilaire, 19-640 (May 21, 2020), the Second Circuit (Jacobs, Calabresi, Chin) affirmed a sentencing enhancement for possessing a firearm with an altered serial number, even though at least one of the serial numbers on the weapon was legible.  The appeal raises an interesting question about the purpose behind this enhancement (and the underlying statute, 18 U.S.C. § 922(k)), which is meant to punish those who possess untraceable firearms.

Background

St. Hilaire was arrested in November 2017 and a protective frisk uncovered a semiautomatic pistol.  Because St. Hilaire had been convicted of two state felonies, he was charged with one count of possessing a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g).  St. Hilaire pled guilty and was sentenced in the United States District Court for the Eastern District of New York.

The pistol that was found on St. Hilaire bore three different serial numbers, each on different components of the weapon.  One of the numbers was slightly scratched but clearly legible; another was scratched but still showed most of the characters clearly; and a third was so heavily scratched that some of the numbers were not clear.  The presentence report applied a four-level sentencing enhancement for possessing a firearm with “an altered or obliterated serial number,” pursuant to U.S.S.G. § 2K2.1(b)(4)(B).  The enhancement put St. Hilaire at a total offense level of 25 and, with a criminal history category IV, the advisory guidelines range was 84-105 months’ imprisonment.  St. Hilaire objected to the enhancement, pointing to the fact that at least one of the serial numbers was clearly legible and that by comparing the three serial numbers, one could determine they were all the same.

Because the Second Circuit had never interpreted what it means for a serial number to be “altered or obliterated” pursuant to the Guidelines, the district court looked to the case law of other circuits for guidance.[1]  The court applied the enhancement, finding that the serial number was not visible to the naked eye and therefore had been “altered,” as that term was intended under the Guidelines.  The district court sentenced St. Hilaire to a below-Guidelines sentence of 60 months’ imprisonment and three years’ supervised release.  St. Hilaire appealed, challenging the four-level sentence enhancement on the grounds that one legible serial number on the firearm renders the enhancement inapplicable.

Discussion

The Second Circuit had not previously construed the meaning of the phrase “an altered or obliterated serial number” or considered whether the sentencing enhancement applied if at least one of the serial numbers on a firearm is clearly legible.  The Court first noted that the language of the enhancement refers to “an” altered or obliterated serial number and does not require that all of the numbers be altered or obliterated.  Moreover, because a firearm is made up of components that are interchangeable, if even one of the serial numbers is altered, it could make it more difficult to trace.  The Court noted that the other five Courts of Appeals to have considered the question held that the sentencing enhancement applies if any single iteration of a gun’s serial number has been altered and obliterated.[2]

St. Hilaire argued that because it was obvious that all of the serial numbers matched and at least one of those numbers was clearly legible, that cured any ambiguity as to the other serial numbers, rendering it easily traceable.  But the Second Circuit rejected the argument that a district court must rely on an inference that the numbers—some of which were obscured and some of which were legible—match.  As the Court noted, the purpose of the enhancement is to “discourage the use of untraceable weaponry.”  That objective is furthered by penalizing those who possess firearms that are more difficult, even if not impossible, to trace.  Moreover, because component parts can be swapped out, altering even one serial number can make it more difficult to trace.  Therefore, the Court held, trial courts must separately evaluate each iteration of a gun’s serial number and the enhancement applies if just one number has been “altered or obliterated.”

The Court next considered what it means for a serial number to be “altered or obliterated” as that phrase is used in the sentencing enhancement.[3]  The plain meaning of the word “altered” is “to make different,” which, as the Court noted, could be accomplished myriad ways, including by scratching out numbers or by adding strokes to change the number.  The Court adopted the approach of the Sixth Circuit, which held that an “altered” serial number is one that is illegible to the naked eye.  See United States v. Sands, 948 F.3d 709, 715, 719 (6th Cir. 2020).

The Court concluded that the “naked eye test” is most consistent with the meaning of “altered” and can be readily and consistently applied in the courtroom.  Moreover, it advances the principles that animate the sentencing enhancement: it facilitates the identification of a weapon; it furthers the goal of removing stolen guns from circulation; it combats defacement of serial numbers that impedes or makes more difficult identification of weapons; and it penalizes the use of untraceable weapons without also punishing accidental damage or clumsy attempts to obscure serial numbers.  Therefore, if a serial number is scratched but the original numbers are legible to the naked eye, the number is not “altered” and the enhancement does not apply.

The government advocated for the less stringent standard for “alteration”—adopted by some Circuit courts—that would include serial numbers that are scratched or damaged, but still legible to the naked eye.  The Court rejected the invitation to follow that approach, concluding that it is fair and useful to draw a clear line between what is and is not an “alteration” for the purposes of the enhancement, while still giving district courts discretion in their role as factfinders at sentencing.

Here, the district court applied the “naked eye” test and found that at least one of the serial numbers was sufficiently scratched that it was not legible.  The Court therefore affirmed the district court’s application of the sentencing enhancement in this case.

Commentary

The result of the Court’s decision is that even an ineffective or partial attempt to obscure the provenance of a firearm could lead to a significant enhancement in the recommended sentence.  That said, a defendant will ordinarily not be penalized for a completely ineffective attempt to deface a serial number or for accidental damage.  In this way the Court struck a balance between fairness to defendants and law enforcement’s substantial interest in accurately tracing firearms.  Although this particular gun was traceable, it was made somewhat more difficult to trace by the obliteration of one of the serial numbers.  It seems unlikely (although not impossible) that a gun hobbyist would wind up in possession of a firearm with an obliterated serial number, and this particular defendant already had two prior felony convictions, which made his possession illegal for reasons having nothing to do with the defacement of the serial number.  On the facts presented here, the district court applied the enhancement, but then imposed a sentence below the Guidelines range, owing to a recognition that the Guidelines sentence with this enhancement was still too long.

The Circuit has long been reluctant to read narrowly Guidelines enhancements relating to firearms.  See United States v. Kirvan, 86 F.3d 209 (2d Cir. 1996) (holding that antique gun is a firearm for purposes of the armed robbery guideline, even though antique guns are excluded from the firearm definition in the Gun Control Act of 1968).  As a public policy matter, this may be a reasonable approach.  Firearms crimes remain a significant threat to society and the Sentencing Guidelines for these offenses sometimes seem low—perhaps not in an absolute sense, but relative to the lengthy sentences imposed for some narcotics and fraud crimes.  If Congress or the Commission believe that firearms offenses are over-punished, they have the authority to amend this and other provisions of the Guidelines to make them more lenient.  Where the application of a given enhancement creates an overly long sentence, the district court has the authority under Section 3553(a) to impose a below-the-range sentence, as it did here.