United States v. Romero-Martinez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10153

Plaintiff-Appellee,

v.  D.C. No.

CR-04-20100-RMW

RAMON ROMERO-MARTINEZ,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, District Judge, Presiding

Argued and Submitted

February 16, 2006—San Francisco, California

Filed April 25, 2006

Before: J. Clifford Wallace, Michael Daly Hawkins, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Wallace

4623

4626 UNITED STATES v. ROMERO-MARTINEZ

COUNSEL

Amanda K. Ruiz, Federal Public Defenders, San Jose, Cali-

fornia, for defendant-appellant Ramon Romero-Martinez.

Merry Jean Chan, Assistant United States Attorney, Oakland,

California, for the plaintiff-appellee.

OPINION

WALLACE, Senior Circuit Judge:

Romero-Martinez appeals from his sentence of fifty-four

months imprisonment and three years supervised release. He

challenges the imposition of a two-level sentencing enhance-

ment under section 2K2.1(b)(4) of the United States Sentenc-

ing Guidelines (Guidelines) for possessing a firearm which

“had an altered or obliterated serial number . . . .” We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291, and we affirm.

UNITED STATES v. ROMERO-MARTINEZ 4627

I.

The facts of this case are relatively simple. On May 8,

2004, Salinas Police Department officers responded to a

reported “brandishing of a weapon” at a restaurant and bar.

One of the officers saw Romero-Martinez in the men’s rest-

room and ordered him to stop moving and place his hands in

the air. Romero-Martinez did not comply and instead walked

into one of the stalls. He retrieved a black pistol from his

waistband and discarded it. Romero-Martinez then exited the

restroom and surrendered to the officers.

The officers found a loaded 9mm model 19 Glock semi-

automatic pistol near the restroom wastebasket. Ordinarily,

such weapons have three serial numbers: one engraved on the

slide, one on the barrel, and a final number cast as a metal

plate affixed to the frame of the weapon. This particular pistol

was missing the serial number on the frame entirely and the

serial numbers on the slide and barrel had been ground off.

Because of the timing of the proceedings, the procedural

posture is somewhat unusual. Romero-Martinez was indicted

for being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) on June 16, 2004 and pled guilty on

August 3. Shortly after the indictment was handed down, the

Supreme Court released its decision in Blakely v. Washington,

542 U.S. 296, 313 (2004) (“every defendant has the right to

insist that the prosecutor prove to a jury all facts legally

essential to the punishment”). Romero-Martinez refused to

admit that the serial numbers on the gun had been “altered or

obliterated,” which would support a two-level enhancement

under section 2K2.1(b)(4) of the Guidelines. As a result, the

district court held a jury sentencing trial to determine whether

Romero-Martinez’s gun possessed a serial number that had

been “altered or obliterated.”

At the sentencing trial, the judge instructed the jury that

“ ‘[a]ltered’ means to have changed or made different. ‘Oblit-

4628 UNITED STATES v. ROMERO-MARTINEZ

erated’ means to have removed completely or erased.”

Romero-Martinez objected to this instruction and instead pro-

posed an instruction based on the American Heritage Dictio-

nary that defined “ ‘obliterated’ as ‘To do away with

completely so as to leave no trace. To wipe out, rub off, or

erase (writing or other markings).’ ” On appeal, Romero-

Martinez challenges the inclusion of “removed” within the

definition of “obliterated.”

Romero-Martinez also sought an instruction that the jury

could not consider the slide and barrel as part of the “firearm”

in determining whether the gun had an altered or obliterated

serial number. The district court disagreed and stated, “I think

the firearm as a whole is the three items when they’re put

together, so I’m satisfied [with] the instruction . . . .”

The jury found, beyond a reasonable doubt, that the gun

possessed an “altered or obliterated” serial number. The jury

did not specifically indicate which serial number it believed

was altered or obliterated.

Romero-Martinez moved for a judgment of acquittal on the

grounds that the serial number on the frame did not qualify

because it was attached by means of a metal plate, which

allegedly did not comply with federal law, and that the slide

and barrel were not part of the “firearm” under federal law.

The district court denied the motion.

Before the district court sentenced Romero-Martinez, the

Supreme Court filed its decision in United States v. Booker,

543 U.S. 220 (2005). In its remedial holding, the Court sev-

ered the mandatory aspect of the Guidelines and rendered the

Guidelines “effectively advisory.” Id. at 245. Under this sys-

tem, the jury trial was not necessary and Romero-Martinez

thus received the benefit of a higher government burden of

proof on the factual issues.

At sentencing, the district court recognized that the Guide-

lines were advisory but stated it would “look very hard at the

UNITED STATES v. ROMERO-MARTINEZ 4629

Guidelines because there is the congressional goal of unifor-

mity in sentencing, among others.” The district court then

applied the two-level enhancement under section 2K2.1(b)(4).

The resulting Guidelines calculation generated a sentencing

range of 51-63 months. The district court sentenced Romero-

Martinez at the low end of the range to 54 months imprison-

ment, to be followed by three years of supervised release.

II.

Much of this appeal is controlled by our recent decision in

United States v. Carter, 421 F.3d 909 (9th Cir. 2005). There

we held 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.” Id. at 910. We further stated that the purpose

of the enhancement is “to ‘discourage the use of untraceable

weaponry.’ ” Id. at 914, quoting United States v. Seesing, 234

F.3d 456, 460 (9th Cir. 2001). “This purpose is advanced not

only by punishing those who possess untraceable firearms,

but also by punishing those who possess firearms that are

more difficult, though not impossible, to trace . . . .” Id.

In Carter, we based our definition in part on the First Cir-

cuit’s decision in United States v. Adams, which held that

“anyone can see what Congress was getting at in the statute.

. . . [T]he statute aims to punish one who possesses a firearm

whose principal means of tracing origin and transfers in

ownership—its serial number—has been deleted or made

appreciably more difficult to make out.” 305 F.3d 30, 34 (1st

Cir. 2002).

[1] Thus, the focus of the enhancement is whether the

action in question makes “accurate information less accessi-

ble” and whether it makes the firearm more difficult to trace.

Carter, 421 F.3d at 910. With this background, we turn to

Romero-Martinez’s individual arguments. Because we do not

know which serial number the jury relied upon in reaching its

4630 UNITED STATES v. ROMERO-MARTINEZ

verdict, we consider all of Romero-Martinez’s arguments to

determine if reliance on any of the three serial numbers would

have been legally erroneous.

III.

Romero-Martinez first contends that the district court erred

by giving jury instructions that included “removed” within the

definition of obliterated. We review de novo the district

court’s interpretation and application of the Guidelines. Car-

ter, 421 F.3d at 911. We similarly review de novo whether a

district court’s instructions misstate the required elements. See

United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).

[2] In Carter, we held that “a firearm’s serial number is

‘altered or obliterated’ when it is materially changed in a way

that makes accurate information less accessible.” 421 F.3d at

910. The district court’s instruction that “ ‘[o]bliterated’

means to have removed completely or erased” easily falls

within the definition established by Carter. Moreover, “re-

moved” falls comfortably within dictionary definitions of

“obliterated.”

[3] Black’s Law Dictionary defines “obliterate” as “to

remove from existence; to destroy all traces of.” Black’s Law

Dictionary 1106 (8th ed. 2004) (emphasis added). Webster’s

Third New International Dictionary includes a number of def-

initions for obliterate, several of which contain “remove.” See

Webster’s Third New International Dictionary 1557 (1981)

(defining “obliterate” as “1: to remove from significance and

bring to nothingness: . . . b: to remove utterly from recogni-

tion . . . c (1): to remove from existence . . . (2) to cause to

disappear . . . remove . . . .”) (emphasis added). The American

Heritage Dictionary, upon which Romero-Martinez places

great weight, defines “obliterate” as “[t]o do away with com-

pletely so as to leave no trace.” American Heritage Dictionary

of the English Language 1248 (3d ed. 1992). Although this

definition does not directly use “remove,” it is clear that “re-

UNITED STATES v. ROMERO-MARTINEZ 4631

moved completely,” the language used in the jury instruc-

tions, meets this definition. Thus, all of these dictionaries

support inclusion of “removed completely” within the defini-

tion of “obliterated.”

IV.

Romero-Martinez next makes three arguments asserting

that this particular gun does not qualify for the enhancement.

A.

Romero-Martinez first argues that the serial numbers on the

slide and barrel do not qualify for the enhancement because

they do not fall within the federal definition of a “firearm.”

Romero-Martinez contends that the slide and barrel are not

part of the firearm because they may be detached from the

gun and are not part of the “frame or receiver” of the weapon.

[4] The applicable definition of a “firearm” is set forth by

18 U.S.C. § 921(a)(3), which provides in part:

(A) any weapon (including a starter gun) which will

or is designed to or may readily be converted to

expel a projectile by the action of an explosive;

(B) the frame or receiver of any such weapon;

(C) any firearm muffler or firearm silencer; or

(D) any destructive device.

Such term does not include an antique firearm.

The definition is set forth in the disjunctive and therefore any

device meeting any of the definitions qualifies as a firearm (if

it is not an antique). “Destructive device” is further defined in

18 U.S.C. § 921(a)(4) and does not apply to the gun Romero-

4632 UNITED STATES v. ROMERO-MARTINEZ

Martinez possessed. While it is true that the slide and barrel

would not fall within definition (B) as they are not part of the

“frame or receiver,” it is clear that the slide and barrel fall

within definition (A). Both parts are necessary to operate the

weapon, and without them the gun cannot “expel a projectile

by the action of an explosive.” As such, it would be coun-

terintuitive to exclude these components from the definition

of firearm when they are necessary to complete the very

action that makes a gun a “firearm” under part (A). Thus, at

least when assembled as a functional weapon, the slide and

barrel are part of a “firearm” under federal law.

[5] Under Romero-Martinez’s interpretation, the only

objects meeting the federal definition of “firearm” would be

those incapable of firing a projectile by themselves. Congress

did not intend such a limitation. We hold that, under 18

U.S.C. § 921(a)(3), both fully assembled guns, as well as

major components of guns (i.e. the frame or receiver), qualify

as “firearms.” As such, altering or obliterating serial numbers

on these components, at least when assembled as a functional

weapon, qualifies for an enhancement under section

2K2.1(b)(4).

B.

Romero-Martinez next argues that the serial numbers on

the slide and barrel do not qualify for the enhancement

because they are not required by federal law. This argument

is foreclosed by Carter.

[6] Carter held that a serial number was “altered or obliter-

ated” when “accurate information [is made] less accessible.”

421 F.3d at 910. Carter thus focuses on whether the informa-

tion was accurate, not whether it was required by federal law.

There is no argument in this case that the serial numbers on

the slide and barrel were not accurate information.

Furthermore, we held in Carter that the purpose of the

enhancement is “to discourage the use of untraceable weapon-

UNITED STATES v. ROMERO-MARTINEZ 4633

ry.” Id. at 914 (internal quotations and citation omitted). This

requirement is satisfied if the firearm is made “more difficult,

though not impossible, to trace . . . .” Id. The removal of the

serial numbers on the slide and barrel clearly made the

weapon more difficult to trace. Under Carter, this is sufficient

to qualify for the enhancement.

[7] The issue of whether a serial number was required by

federal law is therefore not relevant to either Carter’s stan-

dard or the enhancement’s purpose. Removal of “non-

required” serial numbers removes accurate information,

makes a firearm less traceable, and is not indicative of any

lesser culpability. Mandating that a serial number be required

by federal law would allow many criminals to escape liability

under the enhancement even where they both intend to render

a gun less traceable and succeed in doing so. The enhance-

ment’s reach is not so limited.

Romero-Martinez tries to escape this logic by raising hypo-

thetical reductio ad absurdum examples such as where a man-

ufacturer might tape a paper serial number to the firearm.

Although our holding on this issue will need to await a case

involving similar facts, we can address the argument. We are

unpersuaded that these examples would qualify as part of a

“firearm” under federal law because these “components,”

unlike the slide and barrel, would not be necessary for the gun

to “expel a projectile.” Therefore, they likely would not qual-

ify under 18 U.S.C. § 921(a)(3)(A). Of course, our decision

does not foreclose our court from recognizing common-sense

exceptions should such extreme circumstances present them-

selves in future appeals.

Romero-Martinez essentially asks us to impose a new

requirement for the enhancement that is contrary to its pur-

pose and to our decision in Carter. There is no reason to do

so.

4634 UNITED STATES v. ROMERO-MARTINEZ

C.

[8] Romero-Martinez also argues that the serial number on

the frame of the gun could not qualify for the enhancement

because it was not in compliance with federal law. He asserts

that the serial number violated federal law because Glock “at-

taches a plate containing a number to the frame” rather than

“engrav[ing] or cast[ing] a serial number onto the receiver or

frame itself.” The applicable statutory provision requires that

a manufacturer identify weapons “by means of a serial num-

ber engraved or cast on the receiver or frame of the weapon

. . . .” 18 U.S.C. § 923(i).

[9] However, as discussed above, the relevant question

under Carter is whether an action has made “accurate infor-

mation less accessible,” not whether a serial number is

required by or compliant with federal law. 421 F.3d at 916.

A serial number is no less accurate if it is cast on the frame

by means of a metal plate rather than directly engraved upon

it. Additionally, the removal of the metal plate certainly

makes the firearm less traceable. Romero-Martinez’s flawed

approach would allow defendants to escape liability merely

because a manufacturer did not perfectly comply with federal

law, even where the non-compliance has no effect on the

accuracy of the information or the traceability of the firearm.

V.

[10] Finally, Romero-Martinez attempts to raise a post-

Booker “unreasonability” challenge to his sentence. This

argument simply restates his previous arguments and uses

them to contend that the resulting sentence was unreasonable.

These underlying arguments were properly rejected for the

reasons given above. To the extent that “reasonableness”

requires independent review, it is plainly reasonable to

impose the enhancement under section 2K2.1(b)(4) where the

gun had not one, but three separately tampered-with serial

numbers.

AFFIRMED.