     Case: 18-60856       Document: 00515221386         Page: 1     Date Filed: 12/03/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                     No. 18-60856                         December 3, 2019
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JEREMY T. WALKER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CR-119-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       A jury found Jeremy T. Walker guilty of possession of a firearm after a
felony conviction, in violation of 18 U.S.C. § 922(g)(1).              The district court
sentenced Walker to, inter alia, a within-Guidelines sentence of 97-months’
imprisonment. Walker challenges the four-level sentencing enhancement he
received, pursuant to Sentencing Guideline § 2K2.1(b)(4)(B), because the
firearm he possessed had an obliterated serial number.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 18-60856     Document: 00515221386      Page: 2    Date Filed: 12/03/2019


                                  No. 18-60856

      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Guideline § 2K2.1(b)(4)(B) applies a four-level enhancement to
defendant’s base offense level “[i]f any firearm . . . had an altered or obliterated
serial number”.    U.S.S.G. § 2K2.1(b)(4)(B).     Needless to say, whether the
firearm at issue had an obliterated serial number is a question of fact, reviewed
for clear error. See, e.g., United States v. Rodriguez, 559 F. App’x 332, 332–33
(5th Cir. 2014) (per curiam) (reviewing four-level enhancement under
Guideline § 2K2.1(b)(4)(B) for clear error).
      “[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. Jones, 927 F.3d 895, 896–97 (5th Cir. 2019) (internal quotation
marks and citation omitted).         “The [G]overnment has the burden of
demonstrating, by a preponderance of the evidence, the facts that are
necessary to support the enhancement.” United States v. Soza, 874 F.3d 884,
889 (5th Cir. 2017) (citation omitted).
      “When making factual findings for sentencing purposes, district courts
may consider any information which bears sufficient indicia of reliability to
support its probable accuracy.” United States v. Harris, 702 F.3d 226, 230 (5th



                                          2
    Case: 18-60856     Document: 00515221386     Page: 3   Date Filed: 12/03/2019


                                  No. 18-60856

Cir. 2012) (per curiam) (internal quotation marks and citation omitted). Along
that line, a presentence investigation report (PSR) generally has such
“reliability to be considered as evidence by the sentencing judge in making
factual determinations”. Id. (citation omitted). “A district court, therefore,
may adopt the facts contained in a [PSR] without further inquiry if those facts
have an adequate evidentiary basis with sufficient indicia of reliability and the
defendant does not present rebuttal evidence or otherwise demonstrate that
the information in the PSR is unreliable.” Id. (alteration in original) (internal
quotation marks and citation omitted).
      In making its factual findings concerning the § 2K2.1(b)(4)(B)
enhancement, the court considered Walker’s PSR. It was based on information
provided by federal and state agencies and supported by trial testimony that
the firearm Walker possessed had an altered or obliterated serial number
partially restored after his arrest. Walker did not present testimony or other
rebuttal evidence to show that the PSR’s information was materially untrue,
inaccurate, or unreliable. Accordingly, the court did not clearly err in assessing
the four-level enhancement.
      AFFIRMED.




                                        3
