United States v. Angel Torres

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 6, 2021
• Docket: 20-30177
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

AFFIRMED.