September 6, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 16 CR 50002 -
Frederick J. Kapala, Judge.
Bauer, Easterbrook, and Hamilton, Circuit Judges.
Hayes pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). He now challenges his sentence, arguing that the
district court erred in applying an enhancement to his base
offense level under § 2K2.1(b)(4)(B) of the United
States Sentencing Commission Guidelines. That section, which
applies to offenses involving firearms, states that a
four-level enhancement is appropriate where a firearm's
serial number has been "altered or obliterated."
Hayes also challenges the district court's calculation of
his criminal history category.
February 2, 2016, a grand jury indicted Hayes on two counts
of being a felon in possession of a firearm. On June 28,
2016, as part of a plea agreement, Hayes pleaded guilty to
Count Two of the indictment, which specifically charged him
with possessing a model AK-47 rifle.
recitation of the facts, the plea agreement stated that the
serial number on the AK-47 "had been covered by a
paintlike substance that prevented the serial number from
being visible." It was the government's position
that Hayes' offense level should increase by four,
pursuant to § 2K2.1(b)(4)(B) of the Guidelines, because
the serial number was "altered or obliterated." The
plea agreement noted, however, that Hayes disagreed that the
enhancement should apply.
to sentencing, the United States Probation Office prepared a
Presentence Investigation Report (PSR). The PSR's factual
findings repeated the statement from the plea agreement that
the serial number was not visible because it was covered by a
"paint-like substance." Based on that finding, the
PSR recommended that the court apply the §
sentencing memorandum, Hayes conceded that the AK-47's
serial number was covered in a paint-like substance, but
argued that because the serial number was not
"physically altered/' the enhancement should not
apply. As support for that argument, Hayes noted that the
Forensic Science Laboratory of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives applied a "chemical
solvent and light polishing" to the gun, which
ultimately revealed the serial number.
October 17, 2016, the district court held a sentencing
hearing. The court acknowledged Hayes' objection, but
accepted the position of the PSR and the government that the
AK-47's serial number was "altered or
obliterated" for purposes of § 2K2.1(b)(4)(B). The
court adopted the Guidelines calculation contained in the
PSR, finding that Hayes' offense level was 23, and his
criminal history category was five. The resulting Guidelines
range was 84 to 105 months' imprisonment. After hearing
from Hayes and addressing the factors to be considered under
18 U.S.C. § 3553(a), the court imposed a sentence of 94
months' imprisonment. Hayes timely appealed.
Base Offense Level Enhancement
first argument on appeal is that the district court erred in
finding that the AK-47's serial number had been
"altered or obliterated" pursuant to §
2K2.1(b)(4)(B) of the Guidelines. "We review de
novo the district court's legal interpretation of
sentencing guidelines and review factual findings for clear