Argued: May 16, 2013
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:11-cr-00376-BO-1)
James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
NIEMEYER, Circuit Judge:
After Timothy Harris pleaded guilty to two counts of possession of firearms by a felon, in violation of 18 U.S.C. § 922(g), the district court sentenced him to 105 months' imprisonment. In computing the applicable sentencing range under the Sentencing Guidelines, the district court applied U.S.S.G. § 2K2.1(b)(4)(B), which provides for a four-level enhancement if a firearm "had an altered or obliterated serial number." The district court found that the serial number on one of the firearms possessed by Harris had been gouged and scratched, rendering it less legible, but arguably not illegible.
Harris contends that, even though the district judge was unable to read the serial number correctly at the sentencing hearing, the police report indicated that the serial number was nonetheless legible. With this factual record, he contends that § 2K2.1(b)(4)(B) does not apply because no material change was made to the serial number.
We conclude that Harris reads § 2K2.1(b)(4)(B) too restrictively in suggesting that a serial number must be illegible to be "altered." As we explain herein, a serial number that is made less legible is made different and therefore is altered ...