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United States v. Angel Torres
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30177
Plaintiff-Appellee, D.C. No. 1:19-cr-00398-DCN-1 v.
ANGEL TORRES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
Submitted August 4, 2021** San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Defendant Angel Torres (“Torres”) appeals the 70-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He contends the district court abused its
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
discretion by applying a four-level sentencing enhancement for possession of a firearm with “an altered or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B). We affirm.
“[A] firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” United States v. Carter, 421 F.3d 909, 916 (9th Cir. 2005); see also id. at 912 (noting “altered” requires a lesser degree of defacement than “obliterated”). The district court did not clearly err in finding that the serial number on Torres’ firearm had been scratched through in such a manner that the number was appreciably more difficult to discern; it is not easily seen with the naked eye and is only (barely) visible in certain lighting and in enhanced and enlarged photographs. This is sufficient for the enhancement to apply: “[N]othing in the language or purpose of Guideline § 2K2.1(b)(4) suggests that the defacement must make tracing impossible or extraordinarily difficult for the enhancement to apply.” Id. at 916. As the district court held, the result would be the same whether the court applied a preponderance of the evidence or clear and convincing standard. Accordingly, the court did not abuse its discretion by applying the enhancement.