                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4063


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NORMAN SENEKA BOWERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00458-NCT-1)


Submitted:   June 12, 2015                 Decided:   July 10, 2015


Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Greensboro, North Carolina, Terry M. Meinecke, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-
Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Pursuant to a plea agreement, Norman Seneka Bowers (Bowers)

pled    guilty     to   possession    of        a        firearm    after   a   felony

conviction, 18 U.S.C. § 922(g)(1).                  At sentencing, over Bowers’

objection, the district court applied a four-level enhancement

under   United     States     Sentencing      Commission,          Guidelines   Manual

(USSG), § 2K2.1(b)(4)(B) to Bowers’ offense level because the

firearm    he    possessed     had   an       altered       serial    number.      The

application      of     the    § 2K2.1(b)(4)(B)             enhancement     increased

Bowers’ sentencing range from 46 to 57 months’ imprisonment to

70 to 87 months’ imprisonment.                He was sentenced to 78 months’

imprisonment.       On appeal, Bowers challenges the district court’s

application of the § 2K2.1(b)(4)(B) enhancement.                     We affirm.



                                          I

       On December 7, 2013, in Lexington, North Carolina, Bowers

fled on foot following a stop of his vehicle by then-Officer

Jason     Pardue      (Officer    Pardue)           of     the     Lexington    Police

Department.        During the chase, Officer Pardue tackled Bowers,

and a struggle ensued.           After Bowers pointed a gun at Officer

Pardue, Officer Pardue punched Bowers in the face which caused

Bowers to fall to the ground.                  Bowers was then subdued and

placed under arrest.



                                     - 2 -
      The gun recovered at the scene was examined by ATF Special

Agent Matt Amato.         Such examination revealed that the serial

number on the gun had been altered in that three of the five

digits comprising the gun’s serial number had “gouges” in them

making them “unreadable.”       (J.A. 80).

      On December 16, 2013, a federal grand jury in the Middle

District    of   North    Carolina   charged    Bowers    with    possessing    a

firearm after a felony conviction, 18 U.S.C. § 922(g)(1), and

with possessing a firearm with a serial number that had been

altered or obliterated, id. § 922(k).            Bowers pled guilty to the

§ 922(g)(1) offense.

      In preparation for sentencing, a presentence investigation

report was prepared by a United States Probation Officer.                     The

probation    officer     recommended   that     Bowers’   offense     level    be

enhanced four levels under USSG § 2K2.1(b)(4)(B) because the gun

he possessed had an altered serial number.                Bowers objected to

the § 2K2.1(b)(4)(B) enhancement on the basis that he had no

knowledge of the serial number being altered.                    At sentencing,

the   district    court    overruled   the     objection.        Following    the

imposition of a 78-month sentence, the district court entered

judgment from which Bowers now appeals.




                                     - 3 -
                                        II

      Bowers challenges the district court’s application of the

§ 2K2.1(b)(4)(B) enhancement to his offense level.                      According to

Bowers, § 2K2.1(b)(4)(B) requires the government to prove that,

at   the    time    the    defendant    possessed      the   firearm,       he     had

knowledge    that    the    serial   number    on    the   gun    was    altered    or

obliterated.       Since the government did not offer proof of such

knowledge at his sentencing, Bowers posits that the district

court erred in applying the enhancement.

     In applying enhancements under the Sentencing Guidelines,

the district court employs the preponderance of the evidence

standard, not the reasonable doubt standard.                     United States v.

Battle, 499 F.3d 315, 322–23 (4th Cir. 2007).                      In considering

the district court’s application of the Sentencing Guidelines,

we review factual findings for clear error and legal conclusions

de novo.     United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006).

     Section        2K2.1(a)(4)(A)      of     the     Sentencing         Guidelines

provides a base offense level of 20 when a defendant with one

prior felony conviction for either a crime of violence or a

controlled     substance      offense    is    convicted     of     possessing       a

firearm.     This Guideline applied to Bowers because he had a

qualifying          prior        controlled            substance            offense.

Section 2K2.1(b)(4) of the Sentencing Guidelines provides for a

                                       - 4 -
two-level      enhancement          where    the       defendant         possessed         a    stolen

firearm,       USSG   § 2K2.1(b)(4)(A),                and   a     four-level          enhancement

where    the    defendant         possessed        a    firearm          with    an    altered        or

obliterated         serial    number,        id.       § 2K2.1(b)(4)(B).                  The     USSG

§ 2K2.1(b)(4)         enhancements          apply       “regardless             of    whether     the

defendant knew or had reason to believe that the firearm was

stolen or had an altered or obliterated serial number.”                                            Id.

§ 2K2.1,    comment.         (n.8(B)).           The     district         court       applied     the

§ 2K2.1(b)(4)(B)           enhancement       because         the     gun    Bowers        possessed

had   an   altered         serial    number.            Bowers      received          a   two-level

enhancement         for    obstruction       of        justice,      id.        § 3C1.2,        and    a

three-level           downward           adjustment                for          acceptance            of

responsibility, id. § 3E1.1(a), (b), resulting in a sentencing

range of 70 to 87 months’ imprisonment, using Bowers’ Criminal

History Category IV.

      Bowers        does    not     dispute      that        the    gun     he       possessed        on

December       7,   2013     had    an   altered         serial          number.          Under   the

Guidelines’ commentary, there is no requirement that he have any

knowledge, or reason to believe, the gun had an altered serial

number.     Id.; see also United States v. Perez, 585 F.3d 880, 883

(5th Cir. 2009) (“This court has continually enforced the clear

and     unambiguous         language        of     § 2K2.1(b)(4)            and       its      strict

liability standard.”); United States v. Statham, 581 F.3d 548,

553 (7th Cir. 2009) (“[The defendant] need not have known that

                                             - 5 -
serial      numbers       had      been     removed    from         the    weapons.”);         United

States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008) (holding that

§ 2K2.1(b)(4)            is    a    strict     liability            enhancement         provision);

United      States       v.    Murphy,       96     F.3d   846,       849       (6th    Cir.     1996)

(holding          that        § 2K2.1(b)(4)           is        a     “‘strict          liability’”

enhancement        provision          and    that    the    “‘omission           of    a     mens   rea

requirement’” in              § 2K2.1(b)(4) “‘does not violate due process’”

(quoting United States v. Goodell, 990 F.2d 497, 499 (9th Cir.

1993))).           Thus,        the    district        court         properly          applied      the

§ 2K2.1(b)(4)(B) enhancement to Bowers’ offense level.

       Notwithstanding the plain language of § 2K2.1’s commentary

and the persuasive circuit authority cited above, Bowers points

us     to   the     Sixth          Circuit’s        decision         in    United          States    v.

Roxborough,        99     F.3d       212    (6th    Cir.    1996),         in    support       of   his

argument.          In Roxborough, undercover ATF agents purchased two

firearms         with    obliterated         serial    numbers            from   an     individual.

Id. at 213.             When the obliterated serial numbers were restored,

the    firearms         were       traced    back    to    the       defendant,         a    licensed

firearms dealer.               Id.     With regard to these two firearms, the

defendant         pled    guilty       to    dealing       in       firearms      away      from    his

licensed premises, 18 U.S.C. § 922(c).                               Roxborough, 99 F.3d at

213.        At    his     sentencing,         the    defendant’s           offense          level   was

enhanced because the serial numbers on the firearms had been

obliterated.            Id.        Notably, the government could not establish

                                               - 6 -
that the serial numbers had been obliterated by the defendant or

that   the      serial    numbers      were     obliterated      when    he    sold    the

firearms.       Id.      On these facts, the             Roxborough court declined

to uphold the district court’s application of the enhancement.

Id. at 214-15.

       Bowers’ reliance on Roxborough is misplaced.                           First, the

decision       in    Roxborough      conflicts      with   the   plain    language       of

§ 2K2.1’s commentary which clearly states that the § 2K2.1(b)(4)

enhancements apply regardless of whether the defendant knew or

had reason to believe that the firearm was stolen or had an

altered    or       obliterated      serial    number.      Second,      the   court    in

Roxborough considered it important that the government could not

prove that the firearms’ serial numbers were obliterated at the

time of the offense.              Id. at 214 (stating that there was “no

evidence at sentencing either that Roxborough obliterated the

serial    numbers       or    that    the     firearms     had   obliterated         serial

numbers at the time that he sold them”).                     In our case, there is

no dispute that the gun’s serial number was altered at the time

Bowers    committed       his    offense.        Third,    the   Sixth    Circuit       has

declined to follow Roxborough on the basis that it conflicts

with     its        earlier     decision       in    Murphy,     which        held    that

§ 2K2.1(b)(4) is a strict liability enhancement provision.                              See

United States v. Burns, 109 Fed. App’x                     52, 57 (6th Cir. 2004)

(“To   the     extent     that    Roxborough        conflicts    with    the    earlier-

                                            - 7 -
decided     Murphy,    we    are    not     constrained     to   follow    it.”).

Consequently, Roxborough is of no help to Bowers.



                                          III

      For    the   reasons     stated      herein,    we   conclude   that    the

district court did not err when it applied the § 2K2.1(b)(4)(B)

enhancement to Bowers’ offense level.                Accordingly, the judgment

of   the    district   court   is    affirmed.        We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                          AFFIRMED




                                      - 8 -
