Sentencing Partners (July) 2013 - Part IV

Posted by Chris Morales on Tue, Aug 27, 2013 @ 07:00 AM

United States V. Harris
2013 WL 3199227 (4th Cir. 2013)
Serial number made less legible was “altered under §2K2.1 (b)(4)(B)

The defendant pled guilty to two count of possession of firearms by a felon and was sentenced to 105 months. The sentence calculation included a four-level enhancement under §2K2.1 (b)(4) (B), for possession of a firearm with an altered or obliterated serial number. The district court found that the serial number. The district court fount that the serial number on one of the firearms had been gouged and scratched, rendering it less legible, but arguably not illegible. The issue on appeal was weather the serial number was “altered,” within the meaning of §2K2.1 (b)(4) (B). The Fourth Circuit affirmed the enhancement, finding: “Legibility is one of the most essential characteristics of a serial number, as is reflected in the serial number regulations, which required that serial numbers be of a specified size and depth. In imposing these requirements, the regulations reflect the government’s interest in having serial numbers placed on firearms that have a minimum level of legibility. Thus, possession of a firearm that is less legible than that level frustrates the purpose of serial numbers and therefore is targeted by §2K2.1 (b)(4) (B). Accordingly, when a serial number is made less illegible, is also covered by §2K2.1 (b)(4) (B). This interpretation that a serial number rendered less legible by gouges and scratches is ‘altered’ prevents the word ‘obliterated’ from becoming superfluous.” the gun in this case had gouges and scratched across the serial number that precluded reading the serial number correctly, and there were no further marking on the handgun, indicating that the gouges and scratches were intentional. “We concluded that the district court did not err in applying the §2K2.1 (b)(4) (B) enhancement because the evidence supports the conclusion that the serial number had been ‘altered’ by making it less legible and therefore different”

United States v. Whatley
2013 WL 2382278 (11th Cir. 2013)
Abduction enhancement under §2B3.1 (b)(4)(A) did not apply

The defendant, employing similar methods each time, robbed four banks in the greater Atlanta area during 2003 to 2006 and attempted to rob another in 2007. He would arrive at the bank shortly after it closed and request a meeting with someone regarding a business loan. After the bank was closed and the customers had left, the defendant would produce a gun and announce that he was robbing the bank. He would then order employees to walk or crawl to various areas of the respective banks, ultimately placing them in the vault or barricading them in an employee break room. The defendant was able to steal nearly $950, 000 in the four robberies. After a trial, the district court imposed a sentence of 300 months, which included a four-level enhancement under §2B3.1 (b)(4)(A) for abduction, because the defendant argued that moving the employees within the building did not amount to abduction, relying on United States v. Eubanks, 593 F. 3d 645 (7th Cir the defendant’s “movement of the bank employees inside each branch bank did not constitute abduction. To be abducted within the meaning of the guidelines, a victim must be ‘forced to accompany an offender to a different location.’ Although the term “different location” could be interpreted at many different levels of generality, . . . [t]he ordinary meaning to each individual office or room in a local branch of a bank. Instead, the bank would be treated as a single location, as it is n the example provided by the guidelines in which an abduction occurs when an employee is taken from a bank to a gateway car to facilitate the bank robber’s escape. [The defendant] never forced any of the employees to leave the bank, he did not force them to accompany him to a different location, and he cannot be said to have abducted them.” In addition, “[t]his interpretation also preserves a distinction between the enhancement for physical restraint [§2B3.1] and the enhancement for abduction.” The sentence was vacated and remanded “with instructions to apply the two-level enhancement for physical restraint instead of the four-level enhancement for physical restraint instead of the four-level enhancement for abduction.”

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Tags: defendant, guilty, trial, court, evidence, firearms, robbed, felon