USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1015
UNITED STATES,
Appellee,
v.
BERTIN A. ORTIZ,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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George J. West, by Appointment of the Court, for appellant.
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Zechariah Chafee, Assistant United States Attorney, with
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whom Sheldon Whitehouse, United States Attorney, was on brief for
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appellee.
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September 7, 1995
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TORRUELLA, Chief Judge. Defendant Bertin A. Ortiz
TORRUELLA, Chief Judge.
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(Ortiz) appeals his sentence, contending that the district court
impermissibly applied a two-level adjustment in calculating his
sentencing guideline range under the United States Sentencing
Guidelines Manual (U.S.S.G.) 2K2.1 (Nov. 1994). Finding no
error, we affirm.
BACKGROUND
BACKGROUND
The facts relevant to this appeal are not disputed.
Ortiz was arrested when he tried to sell a "streetsweeper"
shotgun to an undercover Drug Enforcement Agent. The
streetsweeper is a 12-gauge, semi-automatic shotgun with a
twelve-round revolving magazine and a folding stock. It is
capable of firing all twelve rounds in under three seconds. The
gun is manufactured with an 18-inch barrel, but the barrel of the
gun seized from Ortiz had been sawed off so that it was less than
18 inches. In addition, the serial number of the gun had been
obliterated.
Ortiz pled guilty to possession of a firearm with an
obliterated serial number, 18 U.S.C. 922(k), and possession of
an unregistered sawed-off shotgun, 26 U.S.C. 5861(d). At
sentencing, the district court calculated Ortiz' base offense
level to be 18, see U.S.S.G. 2K2.1, increased the offense level
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two levels, pursuant to the specific offense characteristic for
possession of a firearm with an obliterated serial number, see
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U.S.S.G. 2K2.1(b)(4), and subtracted three levels for
acceptance of responsibility, see U.S.S.G. 3E1.1, thereby
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reaching an adjusted offense level of 17. The court determined
that Ortiz had a criminal history category of I, and therefore
that the sentencing guideline range was 24 to 30 months. The
court sentenced Ortiz to 24 months' imprisonment.
DISCUSSION
DISCUSSION
Ortiz contends that the district court erred in
applying the two-level specific offense characteristic increase
under U.S.S.G. 2K2.1(b)(4) ("If any firearm was stolen, or had
an altered or obliterated serial number, increase by two
levels."). Ortiz argues that his situation fits within the
exception contained in Note 12 of the Application Notes to the
Commentary for 2K2.1. Note 12 states:
If the defendant is convicted under 18
U.S.C. 922(i), (j) or (k), or 26 U.S.C.
5861(g) or (h) (offenses involving
stolen firearms or ammunition), and is
convicted of no other offenses subject to
this guideline, do not apply the
adjustment in subsection (b)(4) because
the base offense level itself takes such
conduct into account.
Ortiz concedes, as he must, that the plain language of
Note 12 does not apply to his case. Although the specific
offense characteristic for firearms with an obliterated serial
number does not apply to Ortiz' conviction under 922(k), it
does, by its plain terms, apply to his conviction under
5861(d). Ortiz argues, however, that a "fair reading" of Note 12
should include 5861(d).
"As a general rule, courts should strive to apply the
guidelines as written, giving full force and effect to the
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Sentencing Commission's interpretive commentary and application
notes." United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993)
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(citing Stinson v. United States, __ U.S. __, 113 S. Ct. 1913,
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1915 (1993)). We have noted certain limited exceptions to this
rule. For example, the commentary may be disregarded if "it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, [a]
guideline." Id. (quoting Stinson, 113 S. Ct. at 1915). In
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addition, the Commission's suggested interpretation of a
guideline provision may be disregarded if it is "arbitrary,
unreasonable, inconsistent with the guideline's text, or contrary
to law." See id. (quoting United States v. Fiore, 983 F.2d 1, 2
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(1st Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 1830
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(1993)).
Ortiz argues that elements of both of his crimes
already account for an obliterated serial number, and, therefore,
that the reasons underlying the Commission's exception of
5861(g) and (h) from the 2K2.1 specific offense characteristic
apply with equal force to 5861(d). Ortiz apparently contends
that it is arbitrary and unreasonable to except defendants
convicted under 5861(g) (unlawful to "obliterate, remove, or
alter the serial number or other identification of a firearm")
and (h) (unlawful "to receive or possess a firearm having the
serial number or other identification required by this chapter
obliterated, removed, changed, or altered") from 2K2.1, but not
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to except defendants convicted under 5861(d) (unlawful to
possess an unregistered firearm).
Sections 5861(g) and (h) both proscribe conduct
involving a firearm with an obliterated serial number, precisely
the same conduct which warrants the specific offense
characteristic adjustment under 2K2.1. Understandably, the
Commission chose not to apply the adjustment to those offenses.
In contrast, 5861(d) makes it unlawful to possess an
unregistered firearm, conduct wholly different than that
accounted for in 2K2.1. On its face, the distinction between
5861(g) and (h), on the one hand, and 5861(d), on the other,
is perfectly reasonable.
Ortiz nevertheless argues that because it is illegal to
possess a firearm with an obliterated serial number, and
therefore impossible to register such a firearm, his conviction
under 5861 (d) already accounts for the obliterated serial
number, in the same way that it is accounted for in 5861(g)
and (h). As the government points out, however, the serial
number of a firearm can be illegally removed or obliterated after
the firearm is registered with the National Firearms and Transfer
Record. By federal statute, it is unlawful to possess an
unregistered sawed-off shotgun. The Commission apparently
determined that possession of the same gun with an obliterated
serial number increases the seriousness of the offense. We do
not find this rule arbitrary or unreasonable. These are two
distinct offenses; it is one thing to have an unregistered
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firearm and another thing to have an untraceable and unregistered
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firearm. "Since the sentencing scheme that the Commission has
devised for the offense of conviction is plausible as a whole and
not inconsistent with statutory law or constitutional precepts,
we cannot substitute our judgment for that of the Commission."
Zapata, 1 F.3d at 49.
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The only case cited for direct support by Ortiz is
United States v. McDaniel, 550 F.2d 214 (5th Cir. 1977). In that
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case the defendant was convicted of possession of an unregistered
firearm, in violation of 5861(d), possession of the same
firearm with an obliterated serial number, in violation of
5861(h), and transportation of the same unregistered firearm in
interstate commerce, in violation of 5861(j). The penalty
provision applicable to 5861 provides a maximum fine of $10,000
and/or a maximum prison sentence of ten years for any person
convicted under any provision of 5861. The district court
sentenced defendant to serve consecutive ten-year sentences and
to pay a fine of $10,000 for each of the three counts. The
question on appeal was "whether the total sentence can exceed the
statutory maximum when all three counts relate to the same
firearm and the same transaction." McDaniel, 550 F.2d at 218.
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In reversing the sentence, the McDaniel court began by
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noting that Congress did not intend to impose more than the
statutory maximum for "a single act that happened to violate two
separate provisions" of 5861. Id. at 218-19 (quoting Rollins
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v. United States, 543 F.2d 574 (5th cir. 1976)). In language
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relied on heavily by Ortiz, the court reasoned:
[B]ecause it was unlawful to possess a
weapon with an obliterated serial number,
5861(h), it is impossible to register
it. Therefore, possession of a firearm
with an obliterated serial number entails
possession of an unregistered firearm,
5861(d), and the two fall within the
"single act" rationale of Rollins for
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purposes of 5871 sentencing.
Id. at 219.
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McDaniel concerned an issue of statutory maximum
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sentences, as distinguished from the guideline adjustment at
issue in this case. Even if, arguendo, we were to concur with
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the Fifth Circuit's conclusion that possession of a firearm with
an obliterated serial number and possession of an unregistered
firearm constitute a single act, we have consistently held that
"double counting" is often proper under the guidelines. See,
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e.g., Zapata, 1 F.3d at 47; United States v. Sanders, 982 F.2d 4,
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5 (1st Cir. 1992).1 Double counting is proper if it is clearly
intended by the Commission, and the same factor "reflects both
the seriousness of an offense and the likelihood of a particular
defendant's recidivism." Zapata, 1 F.3d at 49.
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That a defendant might be convicted of possession of an
unregistered firearm, and have his guideline range increased
because the serial number of the gun had been obliterated "does
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1 Ortiz also cites United States v. Clement, 471 F.2d 1253 (9th
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Cir. 1972), which also involved the statutory maximum sentence
under 5861, and is therefore inapposite for the same reasons as
McDaniel.
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not seem such an unusual circumstance as to escape the
Commission's attention." Sanders, 1 F.3d at 8. This is
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particularly true in this case because the Commission
specifically excepted certain conduct from the reach of the
2K2.1 adjustment, see 5861(g) and (h), and did not exclude the
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conduct at issue in 5861(d). Moreover, in contrast to
5861(g) and (h), the conduct at issue in 5861(d) is distinct
from that proscribed by the specific offense characteristic. Cf.
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United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994)
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(conviction for possession of a firearm by an unlawful user of a
controlled substance held to be an underlying offense to
defendant's unlawful use or carrying of a firearm during and in
relation to a drug trafficking offense).
Moreover, the increase for possession of an untraceable
firearm properly reflects both the seriousness of the offense and
the likelihood of a particular defendant's recidivism. The
serial number is obliterated from a gun so that it cannot be
traced by law enforcement. The act is thus done in anticipation
that the gun will be used in criminal activity. Hunters and
other recreational gun users have no reason to obliterate the
serial numbers from their guns.
This is manifestly not a case where, "through cross-
referencing, it might be thought that double counting
unintentionally resulted." Sanders, 982 F.2d at 4. The
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guideline language in this case is clear and explicit, and we
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find no justification for fashioning an exception where the
Commission has not.
CONCLUSION
CONCLUSION
For the foregoing reasons, defendant's sentence is
affirmed.
affirmed
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