                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4521


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TIMOTHY JOELETTE HARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cr-00376-BO-1)


Argued:   May 16, 2013                    Decided:   June 26, 2013


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote     the
opinion, in which Judge Gregory and Judge Shedd joined.


ARGUED:   James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
NIEMEYER, Circuit Judge:

        After      Timothy       Harris       pleaded       guilty        to    two      counts      of

possession of firearms by a felon, in violation of 18 U.S.C.

§ 922(g),       the    district         court        sentenced         him     to    105        months’

imprisonment.              In    computing       the    applicable             sentencing         range

under    the       Sentencing       Guidelines,         the       district          court       applied

U.S.S.G.       §     2K2.1(b)(4)(B),           which     provides         for       a    four-level

enhancement if a firearm “had an altered or obliterated serial

number.”        The district court found that the serial number on one

of   the     firearms           possessed       by     Harris      had       been       gouged      and

scratched,         rendering           it     less     legible,          but        arguably        not

illegible.

     Harris contends that, even though the district judge was

unable to read the serial number correctly at the sentencing

hearing, the police report indicated that the serial number was

nonetheless legible.               With this factual record, he contends that

§ 2K2.1(b)(4)(B) does not apply because no material change was

made to the serial number.

        We   conclude           that        Harris     reads       §    2K2.1(b)(4)(B)              too

restrictively          in       suggesting       that       a    serial        number       must    be

illegible       to    be    “altered.”           As    we       explain      herein,        a    serial

number that is made less legible is made different and therefore

is altered for purposes of the enhancement.                                     Accordingly, we

affirm.

                                                 2
                                        I

      After using a gun to threaten a woman during the course of

an argument in Raleigh, North Carolina, police officers arrested

Harris and recovered a .25 caliber handgun from him.                     The police

report described the condition of the gun:

      It appears that the serial number on the gun was
      altered and the fact that there are numerous deep
      gouges and scratches across the width of the alpha
      numerics it appears that this was done with some sort
      of tool. However, the numbers are still legible.

      Based on this incident and another, Harris was indicted for

and   pleaded     guilty     to    illegal       firearms     possession.        The

presentence      report   recommended       a    four-level    enhancement    under

U.S.S.G. § 2K2.1(b)(4)(B) for possession of a firearm that had

an altered or obliterated serial number.                 Harris objected to the

presentence      report’s    recommendation,          contending   that    “because

the serial number of the firearm was legible, the firearm was

traceable, and therefore the enhancement does not apply.”

      At   the   sentencing       hearing,      the   district   court    overruled

Harris’     objection       and    applied        the    enhancement.         After

considering      the   police     report,       the   court   conducted    its   own

examination of the handgun in the courtroom with the parties

present and made the following factual findings:

           [T]he gun was placed on the bench in front of
      [me] about 18 inches away and . . . I was not able to
      read the correct serial number.     I read and looked
      carefully and the serial number that I wrote down from
      my observation was U032076. And, in fact, the actual

                                        3
      serial number that was determined through more careful
      and more scientific examination was U022078.

           And it appears on the real evidence, on the gun
      itself, that there are gouges in the metal and
      scraping along the line of the serial number, but not
      similar marks on other places on the metal barrel,
      neither around the serial number, nor on the other
      side of the barrel. So that the reasonable inference
      is that the gouging and scraping around the serial
      number was intended to affect the ability to literally
      read the serial number not an accidental thing.

           There isn’t any evidence that the defendant did
      this, but there is evidence that the serial number was
      obliterated.   And so, I’ll include the four level
      enhancement.

      After applying the enhancement in its calculation of the

recommended sentencing range, the court sentenced Harris to 105

months’    imprisonment,        which       fell       within     the        Sentencing

Guidelines range.

      This appeal followed.


                                        II

      This appeal presents the single question of whether the

serial number on Harris’ handgun, which was marked with gouges

and   scratches    that   the    district      court      found    made       it   less

legible,   was     “altered,”      within      the       meaning        of     U.S.S.G.

§ 2K2.1(b)(4)(B)      (providing        for        a    four-level           sentencing

enhancement for the possession of a firearm when a firearm has

an “altered or obliterated serial number”).

      Harris contends that a serial number is not “altered,” even

though gouged and scratched, if it remains legible.                          He argues
                                        4
that “altered” requires that the serial number be “materially

changed”    so    that    it    is    not    discernible            to     the    unaided   eye.

Because    the    police       report      stated          that    the   serial     number   on

Harris’    handgun       was   legible,          he    argues       that    the    enhancement

should not have been applied.

     The    government,         relying      on       the     district      court’s    finding

that it could not accurately read the handgun’s serial number

when the handgun was placed on the bench before it, contends

that “at least one of the numbers” had been “obliterated” so

that the serial number was at least “altered.”                               It argues that

the gouges and scratches were “both purposeful and deep enough

that the firearm’s serial number was rendered more difficult to

ascertain    accurately          than       it        would       have    been     absent    the

scratch[es].”

     While other courts of appeals have variously addressed what

is required to render a serial number “altered,” we have no

published opinion that does so.

     The Gun Control Act of 1968 makes it a crime to “possess or

receive     any     firearm          which           has    had      the     importer’s       or

manufacturer’s serial number removed, obliterated, or altered.”

18 U.S.C. § 922(k).              Although Harris was not charged with a

violation    of    §   922(k),       his     recommended            sentencing      range    was

enhanced    by     application          of       a     mimicking         provision     in    the

Sentencing Guidelines, that provided for a four-level sentencing

                                                 5
enhancement for possession of a gun with the serial number that

had been “altered or obliterated.”                   U.S.S.G. § 2K2.1(b)(4)(B).

       The Gun Control Act requires importers and manufacturers to

identify each firearm imported or manufactured with “a serial

number engraved or cast on the receiver or frame of the weapon,

in    such   manner      as    the    Attorney      General     shall     by    regulations

prescribe.”        18 U.S.C. § 923(i); see also National Firearms Act

of 1968, 26 U.S.C. § 5842(a).                        Regulations require that the

importer     or    manufacturer         “legibly          identify   each      firearm”    by

“conspicuously”          placing       the    serial       number    on   the    frame     or

receiver of the firearm.                 27 C.F.R. § 478.92(a)(1) (emphasis

added) (implementing the Gun Control Act); see also 27 C.F.R. §

479.102(a) (implementing the National Firearms Act).                               And the

regulations ensure legibility and conspicuousness by prescribing

the    minimum     size       and    depth    of    the    serial    number.       See    id.

(requiring serial numbers to be in print no smaller than one-

sixteenth of an inch and in depth no less than .003 inch).                                The

depth also ensures permanence.                     The Bureau of Alcohol, Tobacco,

Firearms     and    Explosives         has    explained       that    requiring      serial

numbers on firearms serves the important governmental interests

of    enabling     the    tracking       of    inventory       and   record-keeping        by

licensees; tracing specific firearms used in crimes; identifying

firearms that have been lost or stolen; and assisting in the

prosecution of firearm offenses.                      See ATF Ruling 2009-5.               To

                                               6
these ends, 18 U.S.C. § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B)

serve the government’s interest in preserving the legibility and

permanence        of    serial       numbers            on    firearms         by     punishing         the

possession      of     a     firearm      with        a      serial      number      that        has   been

altered or obliterated.

       Focusing on the term “altered,” Harris argues rationally

that a serial number is altered when it is rendered illegible

such   that       it    cannot       be    traced,            one      of    the     most        important

purposes for requiring serial numbers.                                  See ATF Ruling 2009-5;

see also, e.g., United States v. Carter, 421 F.3d 909, 914 (9th

Cir. 2005) (“[Section] 2K2.1(b)(4) intends to ‘discourag[e] the

use of untraceable weaponry’” (quoting United States v. Seesing,

234 F.3d 456, 460 (9th Cir. 2000))); United States v. Jones, 643

F.3d     257,          259     (8th            Cir.          2011)          (“We      must        respect

§ 2K2.1(b)(4)(B)’s            purpose          to     stem        the       flow     of     untraceable

firearms     in    the       black     market”).                 While       Harris’       argument      is

undoubtedly correct as far as it goes, it still leaves open the

question      whether         “altered,”            which         is        less     demanding         than

“obliterated,”          also     includes             a      serial         number        that    is    not

illegible     but      is     less    legible             than    it     would       be    without      the

gouges and scratches.

       Legibility is one of the most essential characteristics of

a   serial        number,       as        is     reflected              in     the        serial-number

regulations, which require that serial numbers be of a specified

                                                    7
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 § 922(k) and § 2K2.1(b)(4)(B).

      These observations are confirmed by the provisions’ use of

the words “altered” and “obliterated” and the generally accepted

meanings of those words.                        To “alter” is “to cause to become

different        in     some       particular         characteristic            .    .     .       without

changing         into        something           else.”                Webster’s         Third         New

International Dictionary 63 (1993); see also The Random House

Dictionary of the English Language 60 (2d ed. 1987) (defining

“alter”     as    “to        make    different            in    some    particular,            as    size,

style,     course,           or      the       like;           modify”);      Merriam-Webster’s

Collegiate Dictionary 35 (11th ed. 2007) (defining “alter” as

“to make different without changing into something else”).                                            Each

of   the    definitions             of    “alter”         recognizes         that     something        is

“altered”        when         it         is    made        “different”          in         some       way.

“Obliterate,”           in     contrast,         is       defined       as    making           something

“undecipherable              or     imperceptible.”                    Webster's           Third      New

International         Dictionary              1557.            Accordingly,         when       a    serial

number is made less legible, it is altered but not obliterated.



                                                      8
      Thus,   while        the    possession           of    a   firearm       with      a    serial

number that is no longer legible and conspicuous falls in the

heartland of § 922(k) and U.S.S.G. § 2K2.1(b)(4)(B), a serial

number    that     is      less   legible         or    less        conspicuous,         but     not

illegible,       is      also     covered         by        §      922(k)        and     U.S.S.G.

§ 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.

      This is the conclusion that has been reached by a majority

of the courts of appeals.                See, e.g., Carter, 421 F.3d at 910

(holding that “for the purposes of Guideline § 2K2.1(b)(4), a

firearm’s serial number is ‘altered or obliterated’ when it is

materially changed in a way that makes accurate information less

accessible”      (emphasis        added));        Jones,           643    F.3d    at     259     (“A

partially ‘filed off’ or ‘scratched away’ serial number, which

is not visible to the naked eye, falls well within the statutory

scheme”); United States v. Justice, 679 F.3d 1251, 1254 (10th

Cir. 2012) (“What matters is what is ‘perceptible,’ not what can

be discerned by sophisticated scientific techniques”).                                       But see

United    States      v.    Perez,      585   F.3d          880,    885    (5th        Cir.    2009)

(applying § 2K2.1(b)(4) where serial number had been scratched

but   remained          “readable,”       because            “the        serial        number     on

[defendant’s] firearm looked like someone ‘tried to file [it]

off’”).

                                              9
       In this case, the district court, which was the factfinder

for purposes of applying § 2K2.1(b)(4)(B), found that the .25

caliber handgun possessed by Harris had gouges and scratches

across    the     serial       number    that       precluded      it    from     reading     the

serial     number     correctly,             even     as    it     attempted       to    do   so

“carefully.”         Moreover,          it   found        that   there     were    no    further

markings     on     the        handgun,       indicating          that     the     gouges     and

scratches across the serial number were intentional.                                   The court

thus   found      that     these    gouges          and    scratches       made    the    serial

number less legible than it would have been without the gouges

and scratches.

       With these findings, we conclude 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.

       Harris     challenges       this       conclusion,          arguing,       in    essence,

that the police report indicated that “the numbers [were] still

legible” and therefore were not made different.                              This argument,

however, is unpersuasive for two reasons.                            First, there is no

evidence in the record as to how the Raleigh police read the

serial number on Harris’ handgun.                         They could have examined the

number at a closer distance and under more intense light than

was the case when the district judge examined it, or they could

                                               10
have examined it aided by a magnifying glass or a microscope.

Under any hypothesis, however, the fact that they were able to

read the correct serial number does not controvert the district

court’s finding that the serial number was rendered less legible

by the gouges and scratches.               Indeed, even the police recognized

that the number was not pristine:

      It appears that the serial number on the gun was
      altered and the fact that there are numerous deep
      gouges and scratches across the width of the alpha
      numerics it appears that this was done with some sort
      of tool.

      Harris’ argument also fails to account for the fact that

the district court, not the Raleigh police, was the factfinder

and that we defer to the court’s fact findings unless they are

clearly erroneous.          Here, we conclude that the district court’s

findings are not clearly erroneous because the court examined

the handgun, as any factfinder would, and found that the serial

number had been gouged and scraped and that it was unable to

read the correct serial number when “carefully” examining it.

      Finally, Harris challenges the district court’s factfinding

process, arguing that the district court, by viewing the handgun

at    a    distance    of    18     inches,     “interject[ed]       a    subjective

component     .    .   .    into    what    should     be   a   simple,   objective

standard.”        But examining the evidence is just what factfinders

do, and the process used by the district court in this case was

not   an    unreasonable      way    to    determine    the     legibility   of   the

                                           11
serial number on Harris’ handgun.         The court attempted to read

the serial number from a distance at which the court would have

been able to read a serial number without gouges and scratches,

as indicated by its ability to read several digits correctly and

its inability to read correctly two of the digits.

     For   the   reasons   given,   we   affirm   the   judgment    of   the

district court.

                                                                   AFFIRMED




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