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,

____________________

and Cyr, Circuit Judge.

_____________

_____________________

George J. West, by Appointment of the Court, for appellant.

______________
Zechariah Chafee,
_________________

Assistant United

States

Attorney, with

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

__________________
appellee.

____________________

September 7, 1995
____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

Defendant

Bertin A.

Ortiz

(Ortiz) appeals his sentence,

impermissibly applied a

sentencing guideline

Guidelines

contending that the district court

two-level adjustment in calculating

range

under the

Manual (U.S.S.G.)

United States

2K2.1 (Nov.

1994).

his

Sentencing

Finding no

error, we affirm.

BACKGROUND
BACKGROUND

The

Ortiz

shotgun

was

facts relevant

arrested when

to

streetsweeper

twelve-round

an

is

he

undercover

to this

tried

to sell

Drug

Enforcement

12-gauge,

revolving magazine

capable of firing all

appeal are

semi-automatic

and

a folding

not disputed.

"streetsweeper"

Agent.

The

shotgun

with

stock.

It

is

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

obliterated serial number, 18 U.S.C.

an

unregistered sawed-off

sentencing,

the district

shotgun,

two levels,

U.S.S.G.

acceptance

a firearm with

2K2.1(b)(4),

of

26 U.S.C.

5861(d).

Ortiz'

of

At

base offense

2K2.1, increased the offense level

pursuant to the specific

possession of

with an

922(k), and possession

court calculated

level to be 18, see U.S.S.G.

___

of a firearm

an obliterated serial

and

responsibility,

offense characteristic for

subtracted

see
___

-2-

U.S.S.G.

three

number, see
___

levels

for

3E1.1, thereby

reaching an adjusted offense

level of 17.

The

court determined

history category of

I, and therefore

that

Ortiz had a criminal

that

the sentencing guideline

range was 24

to 30

months.

The

court sentenced Ortiz to 24 months' imprisonment.

DISCUSSION
DISCUSSION

Ortiz

contends

applying the two-level

that

the

district

court

specific offense characteristic

erred

in

increase

under

an

U.S.S.G.

altered

or

levels.").

exception

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

obliterated

Ortiz argues

serial

that

his situation

contained in Note 12

Commentary for

2K2.1.

If

fits

of the Application

by

two

within the

Notes to the

is convicted

under 18

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

5861(g)
stolen

increase

Note 12 states:

the defendant

U.S.C.

number,

or

(h)

firearms

(offenses

involving

or ammunition),

and is

convicted of no other offenses subject to

this

guideline,

adjustment

do

not

in subsection

the base offense

apply

the

(b)(4) because

level itself takes such

conduct into account.

Ortiz concedes, as he must,

Note

12 does

offense

not

apply to

characteristic for

his case.

that the plain language of

Although the

firearms with an

specific

obliterated serial

number does not

does,

by

5861(d).

its

apply to

Ortiz' conviction under

plain terms,

apply

his

it

conviction under

Ortiz argues, however, that a "fair reading" of Note 12

should include

5861(d).

"As a general rule,

guidelines

to

922(k),

as

written, giving

courts should strive to

full

-3-

force

and

apply the

effect to

the

Sentencing Commission's interpretive

commentary and

notes."

United States v.
_____________

(citing

Stinson v. United States, __ U.S. __,

_______
______________

1915 (1993)).

rule.

For

violates

We

with,

guideline."

Id.
__

guideline

commentary may

Constitution

the

Cir. 1993)

113 S. Ct. 1913,

have noted certain limited exceptions

inconsistent

addition,

Zapata, 1 F.3d 46, 47 (1st

______

example, the

the

application

or

or

plainly

(quoting Stinson,
_______

Commission's

provision

may be

be disregarded

federal

erroneous

113 S.

suggested

disregarded

statute,

reading

Ct. at

it is

if "it

or

is

of,

[a]

1915).

In

interpretation

if

to this

of

"arbitrary,

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

to law."

(1st

Cir.

See id. (quoting United States v. Fiore,

___ __
_____________
_____

1992), cert.
_____

denied, __
______

U.S.

__, 113

983 F.2d 1, 2

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

5861(g) and (h) from the

apply with equal force

that

it

is

arbitrary

convicted under

and (h) (unlawful

to

5861(d).

Ortiz

and unreasonable

number or other

"to receive

or other

exception of

2K2.1 specific offense characteristic

5861(g) (unlawful to

alter the serial

serial number

the Commission's

to

apparently contends

except

defendants

"obliterate, remove, or

identification of a

or possess a

firearm")

firearm having

identification required by

obliterated, removed, changed, or altered") from

the

this chapter

2K2.1, but not

-4-

to

except

defendants convicted

under

5861(d) (unlawful

to

possess an unregistered firearm).

Sections

5861(g)

involving a firearm with

the

same

conduct

and

both

proscribe

conduct

an obliterated serial number, precisely

which

characteristic adjustment

(h)

warrants

under

2K2.1.

the

specific

offense

Understandably,

the

Commission chose not to

In

contrast,

unregistered

apply the adjustment to

5861(d)

firearm,

accounted for in

makes

conduct

2K2.1.

it

unlawful

wholly

those offenses.

to

possess

different

than

On its face, the distinction

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

an

that

between

5861(d), on the other,

is perfectly reasonable.

Ortiz nevertheless argues that because it is illegal to

possess

firearm

with

therefore impossible

under

5861 (d)

an

to register such a

already

accounts for

number, in

the same way that

and

As

(h).

obliterated

the government

serial

and

firearm, his conviction

the obliterated

it is accounted for

points

number,

in

out, however,

serial

5861(g)

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

unregistered

determined

serial

not

sawed-off

it

is

shotgun.

that possession of

unlawful

The

rule arbitrary

offenses;

it is

one

-5-

apparently

of the offense.

to

an

with an obliterated

or unreasonable.

thing

to possess

Commission

the same gun

number increases the seriousness

find this

distinct

federal statute,

have an

These

We do

are two

unregistered

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

we

inconsistent with statutory

cannot substitute our

law or constitutional precepts,

judgment for that

of the Commission."

Zapata, 1 F.3d at 49.

______

The

only

case cited

for direct

support by

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

_____________
________

Ortiz is

In that

case the defendant was convicted of possession of an unregistered

firearm,

firearm

in violation

with an

5861(h), and

of

5861(d),

obliterated serial

possession of

number, in

transportation of the same

the

same

violation of

unregistered firearm in

interstate

commerce, in

violation of

provision applicable to

and/or

a maximum

convicted

to pay

a fine

of ten

provision of

sentenced defendant to

The penalty

5861 provides a maximum fine of $10,000

prison sentence

under any

5861(j).

5861.

years for

The

any person

district court

serve consecutive ten-year sentences

of $10,000

for each

of the

and

three counts.

The

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

statutory

maximum

when all

three

firearm and the same transaction."

counts

that

statutory

Congress did

the

same

McDaniel, 550 F.2d at 218.

________

In reversing the sentence,

noting

relate to

not intend

the McDaniel court began by

________

to

impose more

than the

maximum for "a single act that happened to violate two

separate provisions" of

5861.

Id. at 218-19
__

(quoting Rollins
_______

-6-

v.

United States, 543

_____________

F.2d 574 (5th

cir. 1976)).

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
it.

is impossible to

Therefore, possession of

register
a firearm

with an obliterated serial number entails

In language

possession

of

5861(d),
"single

an unregistered

and the

act"

purposes of

two fall

rationale

firearm,
within the

of Rollins
_______

for

5871 sentencing.

Id. at 219.
__

McDaniel
________

sentences,

issue in

as

concerned

an

issue

distinguished from

this case.

Even

the

of

statutory

guideline

adjustment at

if, arguendo, we were

________

to concur with

the Fifth Circuit's conclusion that possession of a

an obliterated

serial number

and possession of

firearm constitute a single act,

"double

counting" is

maximum

firearm with

an unregistered

we have consistently held

often proper

under the guidelines.

that

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

the Commission, and

the same factor

"reflects both

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

because the serial number

have

his

guideline range

of the gun had been

increased

obliterated "does

____________________

Ortiz also cites United States v. Clement, 471

_____________
_______

Cir. 1972),
under

which also

involved the statutory

F.2d 1253 (9th

maximum sentence

5861, and is therefore inapposite for the same reasons as

McDaniel.
________

-7-

not

seem

such

Commission's

particularly

an

unusual

attention."

true

in

specifically excepted

circumstance

Sanders,
_______

this

case

certain conduct

as

F.3d

to

at

8.

escape

the

This

because

the

from the

reach of the

is

Commission

2K2.1 adjustment, see

___

5861(g) and (h), and did not exclude the

conduct

5861(d).

at issue

5861(g) and

in

(h), the conduct at

Moreover,

issue in

in contrast

5861(d) is distinct

from that proscribed by the specific offense characteristic.

United

States v.

Vincent,

20 F.3d

229,

to

241 (6th

Cir.

Cf.
__

1994)

______________

_______

(conviction for possession

controlled

substance

of a firearm by an unlawful user of a

held

defendant's unlawful use or

to

be

an

underlying

offense

carrying of a firearm during

to

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

serial number

traced by

that the

of a

particular

is obliterated from

law enforcement.

gun will

other recreational

be used

defendant's

a gun

recidivism.

so that

it cannot

The

be

The act is thus done in anticipation

in criminal

gun users

have no

activity.

reason to

Hunters and

obliterate the

serial numbers from their guns.

This is

manifestly not

a case where,

"through cross-

referencing,

unintentionally

it

might

resulted."

guideline language in

be

thought

Sanders,
_______

this case

that

982

double

F.2d

is clear and

at

counting

4.

explicit, and

The

we

-8-

find

no

justification for

Commission has not.

fashioning

an

exception where

the

CONCLUSION
CONCLUSION

For

affirmed.
affirmed
________

the foregoing

reasons,

defendant's

sentence

is

-9-