United States v. Ortiz

• Court: Court of Appeals for the First Circuit
• Decided: September 7, 1995
• Docket: 95-1015
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 95-1015



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   BERTIN A. ORTIZ,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
                                        _____________



                                _____________________



               George J. West, by Appointment of the Court, for appellant.
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               Zechariah  Chafee,  Assistant United  States  Attorney, with
               _________________

          whom Sheldon Whitehouse, United States Attorney, was on brief for
               __________________

          appellee.


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                                  September 7, 1995

                                 ____________________



TORRUELLA,  Chief Judge.    Defendant  Bertin A.  Ortiz
                    TORRUELLA,  Chief Judge.
                                ___________



          (Ortiz) appeals his sentence,  contending that the district court



          impermissibly applied a  two-level adjustment in calculating  his



          sentencing guideline  range  under the  United States  Sentencing



          Guidelines  Manual (U.S.S.G.)    2K2.1 (Nov.  1994).   Finding no



          error, we affirm.



                                      BACKGROUND
                                      BACKGROUND



                    The  facts relevant  to this  appeal are  not disputed.



          Ortiz  was  arrested when  he  tried  to sell  a  "streetsweeper"



          shotgun   to  an   undercover  Drug   Enforcement  Agent.     The



          streetsweeper  is  a  12-gauge,  semi-automatic  shotgun  with  a



          twelve-round  revolving magazine  and  a folding  stock.   It  is



          capable of firing all  twelve rounds in under three seconds.  The



          gun is manufactured with an 18-inch barrel, but the barrel of the



          gun seized from Ortiz had been sawed off so that it was less than



          18 inches.   In addition, the  serial number of the  gun had been



          obliterated.



                    Ortiz pled  guilty to possession  of a firearm  with an



          obliterated serial number, 18 U.S.C.   922(k), and possession  of



          an  unregistered sawed-off  shotgun,  26 U.S.C.     5861(d).   At



          sentencing,  the district  court calculated  Ortiz'  base offense



          level to be 18, see U.S.S.G.   2K2.1, increased the offense level
                          ___



          two levels,  pursuant to the specific  offense characteristic for



          possession of  a firearm with  an obliterated serial  number, see
                                                                        ___



          U.S.S.G.      2K2.1(b)(4),  and   subtracted  three   levels  for



          acceptance  of  responsibility,  see  U.S.S.G.     3E1.1, thereby
                                           ___


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reaching an adjusted offense  level of 17.  The  court determined



          that  Ortiz had a criminal  history category of  I, and therefore



          that  the sentencing guideline  range was 24  to 30  months.  The



          court sentenced Ortiz to 24 months' imprisonment.



                                      DISCUSSION
                                      DISCUSSION



                    Ortiz   contends  that  the  district  court  erred  in



          applying the two-level  specific offense characteristic  increase



          under  U.S.S.G.   2K2.1(b)(4) ("If any firearm was stolen, or had



          an  altered  or  obliterated   serial  number,  increase  by  two



          levels.").    Ortiz argues  that  his situation  fits  within the



          exception  contained in Note 12  of the Application  Notes to the



          Commentary for   2K2.1.  Note 12 states:



                      If  the defendant  is convicted  under 18

                      U.S.C.   922(i), (j) or (k), or 26 U.S.C.

                         5861(g)  or  (h)  (offenses  involving

                      stolen  firearms  or ammunition),  and is

                      convicted of no other offenses subject to

                      this   guideline,   do   not  apply   the

                      adjustment  in subsection  (b)(4) because

                      the base offense  level itself takes such

                      conduct into account.



                    Ortiz concedes, as he must,  that the plain language of



          Note  12 does  not  apply to  his case.    Although the  specific



          offense  characteristic for  firearms with an  obliterated serial



          number does not  apply to  Ortiz' conviction under    922(k),  it



          does,  by  its  plain terms,  apply  to  his  conviction under   



          5861(d).  Ortiz argues, however, that a "fair reading" of Note 12



          should include   5861(d).



                    "As a general rule,  courts should strive to  apply the



          guidelines  as  written, giving  full  force  and  effect to  the


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Sentencing Commission's interpretive  commentary and  application



          notes."  United States v.  Zapata, 1 F.3d 46, 47 (1st  Cir. 1993)
                   _____________     ______



          (citing  Stinson v. United  States, __ U.S. __,  113 S. Ct. 1913,
                   _______    ______________



          1915 (1993)).  We  have noted certain limited exceptions  to this



          rule.   For  example, the  commentary may  be disregarded  if "it



          violates   the  Constitution   or  a   federal  statute,   or  is



          inconsistent  with,  or  a  plainly  erroneous  reading  of,  [a]



          guideline."   Id.  (quoting Stinson,  113 S.  Ct. at  1915).   In
                        __            _______



          addition,   the  Commission's   suggested  interpretation   of  a



          guideline  provision  may be  disregarded  if  it is  "arbitrary,



          unreasonable, inconsistent with the guideline's text, or contrary



          to law."  See id. (quoting United States v. Fiore,  983 F.2d 1, 2
                    ___ __           _____________    _____



          (1st  Cir.  1992), cert.  denied, __  U.S.  __, 113  S.  Ct. 1830
                             _____  ______



          (1993)).



                    Ortiz  argues  that  elements  of both  of  his  crimes



          already account for an obliterated serial number, and, therefore,



          that  the reasons  underlying  the Commission's  exception of    



          5861(g) and (h) from the    2K2.1 specific offense characteristic



          apply with equal force  to   5861(d).  Ortiz  apparently contends



          that  it  is  arbitrary  and unreasonable  to  except  defendants



          convicted under     5861(g) (unlawful to  "obliterate, remove, or



          alter the serial  number or other  identification of a  firearm")



          and (h) (unlawful  "to receive  or possess a  firearm having  the



          serial number  or other  identification required by  this chapter



          obliterated, removed, changed, or altered") from   2K2.1, but not


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to  except  defendants convicted  under     5861(d) (unlawful  to



          possess an unregistered firearm).



                    Sections  5861(g)   and  (h)  both   proscribe  conduct



          involving a firearm with  an obliterated serial number, precisely



          the   same   conduct   which   warrants   the   specific  offense



          characteristic adjustment  under    2K2.1.   Understandably,  the



          Commission chose not to  apply the adjustment to  those offenses.



          In  contrast,      5861(d)  makes  it  unlawful  to   possess  an



          unregistered   firearm,  conduct   wholly  different   than  that



          accounted for in   2K2.1.   On its face, the distinction  between



             5861(g) and (h), on the one hand, and   5861(d), on the other,



          is perfectly reasonable.



                    Ortiz nevertheless argues that because it is illegal to



          possess  a  firearm  with   an  obliterated  serial  number,  and



          therefore impossible  to register such a  firearm, his conviction



          under    5861 (d)  already  accounts for  the obliterated  serial



          number, in  the same way that  it is accounted for  in    5861(g)



          and  (h).   As  the government  points  out, however,  the serial



          number of a firearm can be illegally removed or obliterated after



          the firearm is registered with the National Firearms and Transfer



          Record.    By  federal statute,  it  is  unlawful  to possess  an



          unregistered   sawed-off  shotgun.    The  Commission  apparently



          determined  that possession of  the same gun  with an obliterated



          serial  number increases the seriousness  of the offense.   We do



          not  find this  rule arbitrary  or unreasonable.   These  are two



          distinct  offenses;  it is  one  thing  to  have an  unregistered


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firearm and another thing to have an untraceable and unregistered
                                               ___________



          firearm.   "Since the sentencing  scheme that the  Commission has



          devised for the offense of conviction is plausible as a whole and



          not  inconsistent with statutory  law or constitutional precepts,



          we  cannot substitute our  judgment for that  of the Commission."



          Zapata, 1 F.3d at 49.
          ______



                    The  only  case cited  for direct  support by  Ortiz is



          United States v. McDaniel, 550 F.2d 214 (5th Cir. 1977).  In that
          _____________    ________



          case the defendant was convicted of possession of an unregistered



          firearm,  in violation  of     5861(d),  possession of  the  same



          firearm  with an  obliterated serial  number, in  violation of   



          5861(h), and  transportation of the same  unregistered firearm in



          interstate  commerce, in  violation of    5861(j).    The penalty



          provision applicable to   5861 provides a maximum fine of $10,000



          and/or  a maximum  prison sentence  of ten  years for  any person



          convicted  under any  provision of    5861.   The  district court



          sentenced defendant to  serve consecutive ten-year sentences  and



          to pay  a fine  of $10,000  for each  of the  three counts.   The



          question on appeal was "whether the total sentence can exceed the



          statutory  maximum  when all  three  counts  relate to  the  same



          firearm and the same transaction."  McDaniel, 550 F.2d at 218.
                                              ________



                    In reversing the sentence,  the McDaniel court began by
                                                    ________



          noting  that  Congress did  not intend  to  impose more  than the



          statutory  maximum for "a single act that happened to violate two



          separate provisions" of    5861.  Id. at 218-19  (quoting Rollins
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v.  United States, 543  F.2d 574 (5th  cir. 1976)).   In language
              _____________



          relied on heavily by Ortiz, the court reasoned:



                      [B]ecause  it was  unlawful to  possess a

                      weapon with an obliterated serial number,

                        5861(h), it  is impossible to  register

                      it.   Therefore, possession of  a firearm

                      with an obliterated serial number entails

                      possession  of  an unregistered  firearm,

                        5861(d),  and the  two fall  within the

                      "single  act"  rationale  of Rollins  for
                                                   _______

                      purposes of   5871 sentencing.



          Id. at 219.
          __



                    McDaniel  concerned  an   issue  of  statutory  maximum
                    ________



          sentences,  as  distinguished from  the  guideline  adjustment at



          issue in  this case.  Even  if, arguendo, we were  to concur with
                                          ________



          the Fifth Circuit's conclusion that possession of a  firearm with



          an obliterated  serial number  and possession of  an unregistered



          firearm constitute a single act,  we have consistently held  that



          "double  counting" is  often proper  under the guidelines.   See,
                                                                       ___



          e.g., Zapata, 1 F.3d at 47; United States v. Sanders, 982 F.2d 4,
          ____  ______                _____________    _______



          5 (1st Cir. 1992).1   Double counting is proper if it  is clearly



          intended by  the Commission, and  the same factor  "reflects both



          the  seriousness of an offense and the likelihood of a particular



          defendant's recidivism."  Zapata, 1 F.3d at 49.
                                    ______



                    That a defendant might be convicted of possession of an



          unregistered  firearm, and  have  his  guideline range  increased



          because the serial number  of the gun had been  obliterated "does



                              
          ____________________



          1  Ortiz also cites United States v. Clement, 471  F.2d 1253 (9th
                              _____________    _______

          Cir. 1972),  which also  involved the statutory  maximum sentence

          under   5861, and is therefore inapposite for the same reasons as

          McDaniel.
          ________



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not  seem   such  an  unusual  circumstance  as   to  escape  the



          Commission's  attention."   Sanders,  1  F.3d  at  8.    This  is
                                      _______



          particularly   true   in  this   case   because   the  Commission



          specifically excepted  certain conduct  from the  reach of the   



          2K2.1 adjustment, see    5861(g) and (h), and did not exclude the
                            ___



          conduct  at issue  in    5861(d).   Moreover,  in contrast  to   



          5861(g) and  (h), the conduct at  issue in    5861(d) is distinct



          from that proscribed by the specific offense characteristic.  Cf.
                                                                        __



          United  States v.  Vincent,  20 F.3d  229,  241 (6th  Cir.  1994)
          ______________     _______



          (conviction for possession  of a firearm by an unlawful user of a



          controlled  substance  held  to   be  an  underlying  offense  to



          defendant's unlawful use or  carrying of a firearm during  and in



          relation to a drug trafficking offense).



                    Moreover, the increase for possession of an untraceable



          firearm properly reflects both the seriousness of the offense and



          the  likelihood  of a  particular  defendant's  recidivism.   The



          serial number  is obliterated from  a gun  so that  it cannot  be



          traced by  law enforcement.  The act is thus done in anticipation



          that the  gun will  be used  in criminal  activity.   Hunters and



          other recreational  gun users  have no  reason to  obliterate the



          serial numbers from their guns.



                    This is  manifestly not  a case where,  "through cross-



          referencing,   it  might   be   thought   that  double   counting



          unintentionally  resulted."    Sanders,  982  F.2d  at  4.    The
                                         _______



          guideline language in  this case  is clear and  explicit, and  we


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find  no  justification for  fashioning  an  exception where  the



          Commission has not.



                                      CONCLUSION
                                      CONCLUSION



                    For  the foregoing  reasons,  defendant's  sentence  is



          affirmed.
          affirmed
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