In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under U.S.S.G. § 2K2.1(b)(4)(B). Looking to the rulings of other Circuits, the Second Circuit ruled on two distinct issues pertaining to the enhancement. First, the Court concluded that although a gun may have its serial number on multiple locations, the enhancement applies even if the serial number is “altered or obliterated” in only one of multiple locations. Second, the Court held that for a serial number to be deemed “altered,” the number must be illegible to the naked eye and not merely defaced. The Court affirmed the application of the enhancement in this case based on the district court’s factual finding that one of the multiple iterations of the serial number on the gun was not legible.
Defendant Robert St. Hilaire pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and objected to the district court’s application of the four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) for an “altered or obliterated” serial number because, of the three serial numbers on the gun he possessed, one iteration of it was clearly legible, thus dispelling any ambiguity as to the other two that were less legible. St. Hilaire also argued that the less legible versions of the serial number on the gun did not constitute “alterations.”
In addressing an issue that was novel to the Second Circuit, the Court first held that the enhancement applies “if a single iteration of a serial number has been altered or obliterated, notwithstanding whether another may be legible.” Thus, the fact of a serial number being visible and unaltered in one location does not defeat application of the enhancement. Although the Court acknowledged that the purpose of the enhancement is to discourage the use of untraceable weapons, and a gun with a visible serial number in at least one location presumably can be traced, the Court joined the five other Courts of Appeals that have considered the question and held that the enhancement applies “if any single iteration of a gun’s serial number has been altered or obliterated.”
The Court concluded that because the wording of the enhancement references “an” altered or obliterated serial number, it is not required that all of a gun’s serial numbers be so affected. The Court also stated that the interchangeability of gun parts and the greater difficulty in tracing weapons with even partially obscured or defaced numbers supports the policy rationale behind the enhancement, even if law enforcement can ultimately identify the serial number and trace the firearm.
Second, as to the undefined meaning of “altered” in the guideline (“obliteration” was not at issue in the case), the Court recognized that there are many ways to “alter,” or make different. Recognizing a Circuit split as to whether a serial number can be “altered” notwithstanding that it remains legible, the Court chose to follow the Sixth Circuit decision in United States v. Sands, 948 F.3d 709 (6th Cir. 2020), and held that “altered” in this context means actually illegible to the naked eye. Under this “naked eye test,” a serial number that has been defaced but is legible with the naked eye is not “altered.” According to the Court, this interpretation best comports with the ordinary meaning of the word “altered” and can be easily and effectively applied, without penalizing accidental damage or half-hearted efforts at defacing. Thus, if a serial number is marred in some way but still discernible to the reader without aid, the enhancement does not apply.
In St. Hilaire’s case, the tampering was done by scratching, which left one serial number legible, and two others less so. The Court acknowledged that the correspondence between the numbers of the plainly legible serial number and the two less legible versions was such that “it would be uncanny for the numbers to baffle anyone who looks closely, makes deductions, and starts with the assumption that the serial numbers are likely the same.” Nonetheless, the Court held that because the district court made a factual finding that it could not determine what the numbers were on the most badly damaged iteration of the serial number, which was the proper one on which to base its assessment, it follows that the judge could not conclude that all of the iterations matched. The Court held that the district court’s factual finding as to legibility was not “clearly erroneous,” and thus affirmed application of the enhancement.