GLAPP APPENDIX C

AMENDMENT 828

Part A (§2K2.1(b)(4)(B) Enhancement)

Section 2K2.1(b)(4)(B)(i) is amended by striking “any firearm had an altered or obliterated serial number” and inserting “any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye”.

The Commentary to §2K2.1 is amended—

in Note 8(A) by striking “if the offense involved a firearm with an altered or obliterated serial number” and inserting “if the offense involved a firearm with a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye”; and by striking “This is because the base offense level takes into account that the firearm had an altered or obliterated serial number.”;

and in Note 8(B) by striking “regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number” and inserting “regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye”.

Part B (Interaction between §2K2.4 and §3D1.2(c))

The Commentary to §2K2.4 captioned “Application Notes” is amended in Note 4 by striking the following:

“Weapon Enhancement.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.

A sentence under this guideline also accounts for conduct that would subject the defendant to an enhancement under §2D1.1(b)(2) (pertaining to use of violence, credible threat to use violence, or directing the use of violence). Do not apply that enhancement when determining the sentence for the underlying offense.

If the explosive or weapon that was possessed, brandished, used, or discharged in the course of the underlying offense also results in a conviction that would subject the defendant to an enhancement under §2K1.3(b)(3) (pertaining to possession of explosive material in connection with another felony offense) or §2K2.1(b)(6)(B) (pertaining to possession of any firearm or ammunition in connection with another felony offense), do not apply that enhancement. A sentence under this guideline accounts for the conduct covered by these enhancements because of the relatedness of that conduct to the conduct that forms the basis for the conviction under 18 U.S.C. § 844(h), § 924(c) or § 929(a). For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under §2K2.1(b)(6)(B) would not apply.

In a few cases in which the defendant is determined not to be a career offender, the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that would have resulted if the enhancements for possession, use, or discharge of a firearm had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does not result in a decrease in the total punishment. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a).”;

and inserting the following:

“Non-Applicability of Certain Enhancements.—

(A) In General.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.

(B) Impact on Grouping.—If two or more counts would otherwise group under subsection (c) of §3D1.2 (Groups of Closely Related Counts), the counts are to be grouped together under §3D1.2(c) despite the non-applicability of certain enhancements under Application Note 4(A). Thus, for example, in a case in which the defendant is convicted of a felon-in-possession count under 18 U.S.C. § 922(g) and a drug trafficking count underlying a conviction under 18 U.S.C. § 924(c), the counts shall be grouped pursuant to §3D1.2(c). The applicable Chapter Two guidelines for the felon-in-possession count and the drug trafficking count each include ‘conduct that is treated as a specific offense characteristic’ in the other count, but the otherwise applicable enhancements did not apply due to the rules in §2K2.4 related to 18 U.S.C. § 924(c) convictions.

(C) Upward Departure Provision.—In a few cases in which the defendant is determined not to be a career offender, the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that would have resulted if the enhancements for possession, use, or discharge of a firearm had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does not result in a decrease in the total punishment. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a).”.

Reason for Amendment: This amendment addresses circuit conflicts involving §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes). Part A addresses whether the serial number of a firearm must be illegible for application of the enhancement for an “altered or obliterated” serial number at §2K2.1(b)(4)(B), and Part B addresses whether subsection (c) of §3D1.2 (Groups of Closely Related Counts) permits grouping of a firearms count under 18 U.S.C. § 922(g) with a drug trafficking count, where the defendant also has an 18 U.S.C. § 924(c) conviction.

Part A – Section 2K2.1(b)(4)(B) Enhancement

Part A of the amendment resolves the differences in how the circuits interpret the term “altered” in the 4-level enhancement at §2K2.1(b)(4)(B), which applies when the serial number of a firearm has been “altered or obliterated.” A circuit conflict has arisen as to whether the serial number must be illegible for this enhancement to apply and as to what test for legibility should be employed.

The Sixth and Second Circuits have adopted the naked eye test. The Sixth Circuit held that a serial number must be illegible, noting that “a serial number that is defaced but remains visible to the naked eye is not ‘altered or obliterated’ under the guideline.” United States v. Sands, 948 F.3d 709, 719 (6th Cir. 2020). The Sixth Circuit reasoned that “[a]ny person with basic vision and reading ability would be able to tell immediately whether a serial number is legible,” and may be less inclined to purchase a firearm without a legible serial number. Id. at 717. The Second Circuit followed the Sixth Circuit in holding that “altered” means illegible for the same reasons. United States v. St. Hilaire, 960 F.3d 61, 66 (2d Cir. 2020).

By contrast, the Fourth, Fifth, and Eleventh Circuits have upheld the enhancement where a serial number is “less legible.”The Fourth Circuit held that “a serial number that is made less legible is made different and therefore is altered for purposes of the enhancement.” United States v. Harris, 720 F.3d 499, 501 (4th Cir. 2013).The Fifth Circuit similarly affirmed the enhancement even though the damage did not render the serial number unreadable because “the serial number of the firearm [] had been materially changed in a way that made its accurate information less accessible.” United States v. Perez, 585 F.3d 880, 884 (5th Cir. 2009). In an unpublished opinion, the Eleventh Circuit reasoned that an interpretation where “altered” means illegible “would render ‘obliterated’ superfluous.” United States v. Millender, 791 F. App’x 782, 783 (11th Cir. 2019).

This amendment resolves this circuit conflict by amending the enhancement to adopt the holdings of the Second and Sixth Circuits. As amended, the enhancement applies if “any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye.” This amendment is consistent with the Commission’s recognition in 2006 of “both the difficulty in tracing firearms with altered and obliterated serial numbers, and the increased market for these types of weapons.” See USSG, App. C, amend. 691 (effective Nov. 1, 2006). By employing the “unaided eye” test for legibility, the amendment also seeks to resolve the circuit split and ensure uniform application.

Part B – Grouping: §2K2.4, Application Note 4

Part B resolves a difference among circuits concerning whether subsection (c) of §3D1.2 (Groups of Closely Related Counts) permits grouping of a firearms count under 18 U.S.C. § 922(g) with a drug trafficking count, where the defendant also has a separate count under 18 U.S.C. § 924(c). Section 3D1.2 (Grouping of Closely Related Counts) contains four rules for determining whether multiple counts should group because they are closely related. Subsection (c) states that counts are grouped together “[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The Commentary to §3D1.2 further explains that “[s]ubsection (c) provides that when conduct that represents a separate count, e.g., bodily injury or obstruction of justice, is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.”

While there is little disagreement that the felon-in-possession and drug trafficking counts ordinarily group under §3D1.2(c), courts differ regarding the extent to which the presence of the count under 18 U.S.C. § 924(c) prohibits grouping under the guidelines. Section 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes) is applicable to certain statutes with mandatory minimum terms of imprisonment (e.g., 18 U.S.C. § 924(c)). The Commentary to §2K2.4 provides that “[i]f a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense.”

The Sixth, Eighth, and Eleventh Circuits have held that such counts can group together under §3D1.2(c) because the felon-in-possession convictions and drug trafficking convictions each include conduct that is treated as specific offense characteristics in the other offense, even if those specific offense characteristics do not apply due to §2K2.4. United States v. Gibbs, 395 F. App’x 248, 250 (6th Cir. 2010); United States v. Bell, 477 F.3d 607, 615–16 (8th Cir. 2007); United States v. King, 201 F. App’x 715, 718 (11th Cir. 2006). By contrast, the Seventh Circuit has held that felon-in-possession and drug trafficking counts do not group under these circumstances because the grouping rules apply only after the offense level for each count has been determined and “by virtue of §2K2.4, [the counts] did not operate as specific offense characteristics of each other, and the enhancements in §§2D1.1(b)(1) and 2K2.1(b)(6)(B) did not apply.” United States v. Sinclair, 770 F.3d 1148, 1157–58 (7th Cir. 2014).

This amendment revises Application Note 4 to §2K2.4 and reorganizes it into three subparagraphs. Subparagraph A retains the same instruction on the non-applicability of certain enhancements; subparagraph B explains the impact on grouping; and subparagraph C retains the upward departure provision. As amended, subparagraph B resolves the circuit conflict by explicitly instructing that “[i]f two or more counts would otherwise group under subsection (c) of §3D1.2 (Groups of Closely Related Counts), the counts are to be grouped together under §3D1.2(c) despite the non-applicability of certain enhancements under Application Note 4(A).”

This amendment aligns with the holdings of the majority of circuits involved in the circuit conflict. Additionally, this amendment clarifies the Commission’s view that promulgation of this Application Note originally was not intended to place any limitations on grouping.

Effective Date: The effective date of this amendment is November 1, 2024.

Amendment 828