good morning may it please the court david from you know assistant federal public defender on behalf of appellate canard carter the issue before this court is the proper meaning to give to the words alter and obliterate as they are used in united states  guidelines section two page two point one the four more specifically whether the two level and hansen under that section should be applied in a case where the serial number on the weapon could be read with a microscope that was not visible to the stop here for just a second because we receive the twenty three letter from the government relative to blakely and to the issue of visible to the naked eye as i read your briefs and my correctly interpreting your position that you agree that the serial number is not the scribble to the naked eye but can be just or a ball under a microscope that's correct your honor ok if that's the case what's this disputed issue of fact am i looking at this wrong way i believe so your honor i think that this court regardless of how blakely has decided scuse me the book or fans and cases are decided interpret in blakely i think that this court needs guidelines which your client endure range where he was given the sense that the lower end of that range that's correct if we remove the enhancement you get another lower range so that the bottom of that range would be lower than forty six that he got under this calculation by the district court am i correct on that that's correct your honor his sentence was increased roughly by twenty percent ok so even if we're not talking about a factual determination because they have to go back even without a blink when alice was to allow the judge to drop down if you can by removing the under your under your theory of the case by removing the enhancement so that if he was thinking about going the lowest of the low you could go lower than forty six hundred under that analysis now you and i would not have to go back so with or without blakeley it's got to go back i believe that's correct to answer the question i think that that is precisely the hypothetical that i would i had planned on posing this morning and i think that that's exactly what alter means when i think that it's what we're talking about here is information what a serial number is is information and if you change a number from eleven to twelve as the court suggested or the other way around you've changed information and that's prevented law enforcement from tracing a weapon and it was just law enforcement always have a microscope i mean i meant to be practical or what you want to call i think that in fact one force that this would this is routine in terms of the analysis of a weapon we're not talking about something that is beyond every day analysis of a weapon when it comes into the or hinder rather mom foresman in their investigation of this type of case regardless of where you would find where one would find oneself i think even in a small town this kind of extra staff or excuse me this kind of st routine in any kind of investigation and we're not talking about d n a analysis we're not talking about some extraordinary step we're talking about looking at a weapon under a microscope which i would imagine is available to most law enforcement agencies regardless of the location guideline section is about and what this enhanced minutes meant to punish is to those weapons which ultimately are not traceable and that was not the case with this weapon you're relying on ceasing then that's correct  sense and to the conviction of the statue i mean if i can get a gun on the street just has the serial number of glitter added to the extent we can use that word to say i can't read the serial number or there is a  when you alter something you change information when you obliterate you remove information either way you're preventing law enforcement from tracing a weapon and it can't be that they mean the same thing otherwise why would both words be use they have to mean something different and i think that's that's ultimately the point and i think that's where we derive the the the theory that what ultimately this is talking about is traceability is not on the blakely issue but in ceasing we were pretty articulate we steak that while we understand the district court's desire to respect the interlined purpose of the guidelines to create two one before discouraging use of untraceable weaponry and agree that this purpose is frustrated by the use of homemade silencers without serial numbers that the plain language of the guidelines is clear now how do we deal with that when we counsel seized upon it and said well bility relative to serial numbers doesn't even exist versus a weapon with manufacturer serial numbers that have been either removed altered or changed whatever how do we do this analysis being we have t trace there's i don't think anyone has an argument with that your honor what petitioner does always take the language of ceasing which says we're trying to discourage traditional firearms and makes it a condition precedent implication of that has meant where it was never intended by the legislature it takes the simple purpose of trying to discourage untraceable weaponry and says ok therefore we're not going to impose this enhanced but unless the gun is untraceable so it takes a legislative person purpose and makes it a condition precedent where really it's not intended to do so i would suggest to the court that a better interpretation of this zone court's true intent on this issue comes in the mac decision problem pointing out the fact that we might have been little bit loose and in several decisions and work across roads you know if we're going to be between makin cities think we've got to go somewhere if we can without a name dank and i guess i'm reaching for that goes more because we talk about traceability in today's world in science i suppose you could come up with a situation you could trace almost anything given enough science and what we seem to be generating back actually it is we've got this guy with a gun and we're going to take this gun and run it through all this stuff and eventually two weeks from now we find out what it came from what difference does it make whether the police officer on the street can trace that or not however i think by way of analogy all the decisions i look at nine twenty two k this is the criminalization of the other possession and what's interesting about this is the altered or literary language is exactly the same it tracks to be found guilty of that crime you have to know that the weapon you're possessing has an altered serial number and i would argue this to the court if the court takes the position that a weapon has to be untraceable then how would you ever prove the quite simply well yeah i knew that the weapon was ground down to that the silver underbody of the weapon and i knew that the serial number was abysmal so naked eye but i didn't know that with a microscope you couldn't find this weapon i didn't know and that it was in fact untraceable ceasing went on to say while we appreciate the fact that we're trying to discourage untraceable weapons we can apply that has been the situation my reading of that is that that does not create a condition precedent for the implication never had a serial number and so you of liberation issue was not there so maybe c c just falls off the victim i believe it does i believe a much better a much better and more logical interpretation statute comes for  screwdriver serial number on a hand got very poorly very poorly in fact altering i used the word altering on purpose altering the look of a couple the numerals and the serial number but not making it invisible to naked eye and the court there and this is again this is a case i cited in my papers at three o five to thirty the court said that as long as the serial number becomes judgement made with respect to the street police officer and i think that is i don't think the issue really is the officer on the street and what the officer of service on a weapon an officer in this context has probable cause to arrest someone  if there is a weapon involved and if they run a check on a person and see that they are prohibited person so the serial number doesn't really come at the issue at that point i think it is really later in time that it is relevant and i think that's the focus and so i don't think we can do away with the ceasing case i don't think we should put it to the side i think in fact this briefing was very specific because there's instrumentalities so much that was homemade never had a serial number the guideline adams case i would point out that the i think it's precisely the fact that the statute in that case has a men's wear requirement that makes it completely not relevant to the issue before this court and that is the guideline enhancement here is a strict liability provision and it's precisely because of that that we ought to be concerned about the twenty percent increase in the sentence for a weapon that ultimately had a  number alternately was traceable i think the focus really has to come back to traceability and the fact that this weapon when subject to routine police analysis unlike the the  that the government presents of officers lined up outside of labs i think this was routine it was done in a matter of three weeks in the ordinary course of investigation and it was determined that the weapon was traceable thank you counsel we appreciate the argument