well in case one seven or two zero the united states of america versus charles thing and oral argument not to exceed fifteen minutes per side mr nelson for of his advisory guideline range which increased the advisory range by or excuse me which resulted in sentence that was imposed of anywhere from twenty one to thirty two months above the guideline range that he believes should apply the basic facts of this case are that during the search of mr sands residence the a t f agents located a firearm in a gun safe and during the course of their search when they prepared the return on the search warrant they listed the gun list of the serial number and  submitted that to the court and eventually mr sands was charged with several offenses he ultimately pled guilty to being a felon in possession of a firearm and the enhancement at question at issue here was recommended by the probation officer and adopted by the court over mr sands objection and the basic argument is that in light of the fact that the a t f agent who are charged with the responsibility of enforcing the federal gun laws when they look at a gun and they determine that the serial number is sufficiently legible without any sort of scientific test just based on the naked eye to record that that the for purposes of the sentencing enhancement the serial number should not be considered as being either altered or literate would that  sands in the district court and during the sentencing the brief argument on the issue of sentencing pointed out that the return did reflect the serial number and the reason that there was a motion to take  notice is because the although there was no there was no dispute with that that that serial number was listed on the return that that return was not made part of the record it was but to me that means that the numbers were readable yes i don't think i'm not sure that there was any real dispute over that based on the way that this was was dealt with in the district court and the issue in the in the cases issue i mean i'm going to ask the government because i want their position on the motions of petty motions but whether or not the officers could read the serial numbers i'm not sure that's dispositive i think whether a whether a reasonable person i guess the average person could read it whether or not the officers in fact did read it or not  think we have a more of an objective standard than a subjective standard should we as well i think are kind of arguing for the the naked eye standard that yes you could filthy it by the naked eye then it's not ople iterated or that any of the cases and again there was one published opinion from this court dealing with this enhanced meant and most of the cases from the other the other courts of appeals and i think it's the carter case from the ninth circuit which  and that they will that the problem here and one thing that i found it sort of interesting as i read through this that and i'm not sure that it would have been helpful to have some sort of a chart the the the case is addressing this enhanced moment i don't i'm not sure that any of them actually were issues where there was a naked eye argument made that all in all of these cases the standard that the courts applied was relatively low but the cases the facts were generally pretty egregious that these were cases where someone had actually apparently ground off and i think that was the six circuit case the love case where talk to both the silver report tina where the serial number was that someone actually physically ground it off and the argument in that case was that well if you buy scientific experimentation or whatever you can bring that back to earth you could do it microscopic ones where one of them i can't remember exactly which one one case one court of appeal said because some sort of painter some other substance was laid over the serial number and that had to be removed to read it that that  counted but there were other ones where they talk about they couldn't tell if it was a three if it was a five other things like that where they were pretty well destroyed and but they say well it's sort of a situation that where the courts did not necessar did not necessarily have to say exactly where the line was drawn but in all of those cases i think that they clearly fell on the side of the line that would result in that assessment being being applied and i think you know if in this case had it been a situation like that had someone taken a grinder to the serial number or some of these other things that were done in some of these other cases that i don't think i'd be here now making this argument  because the clear case the easy case is it doesn't matter what the standard of that is being applied is because there is would be very little if any dispute that that serial number has been sort of scratching my head sometimes appellate courts make things more complicated needlessly and the wording of the statute is  doesn't say anything about read it with the naked eye it doesn't say i mean i don't know why we're not talking about the dictionary meaning of altered and while we're talking about all these other things and can you give me a convincing rationale for that i mean these are the serial number is in this case from looking at your exhibits i mean they're they can still be rid at least for the most part but yeah they've been alt they're not like they started out and why isn't that the end of the now lasse's well i think because you found some cases that make it more complicated well not necessarily wrong i think the problem with one like the statute or the guideline talks about altered or obliterated the trying to put those in context and i think there are cases where they talk about a serial number that that if you are and that comes down to the issue that we did address above the attempt that if you would tempt to obliterate something by scratching through it but it's still legible but that should not count as an alteration per se not but they didn't they didn't succeed they didn't accomplish it and therefore they didn't complete complete the the action and therefore there's no one here i think we do have to figure out  and find out what originally it was so even though it's obliterated to our eyes there are traces that exist later on that science can find out and maybe maybe nothing can ever time's expired and i just to respond to that promptly because and one of the things that and i think it was in the carter cases cited where the ninth circuit said basically that you impute the knowledge of the enhancement to the defendant that they can look at a can't tell but the a t f agents whose responsibility it is to enforce this don't believe it's an issue that all of a sudden that you're part of you're punishing your imputing more knowledge to the defendant than you are to the agency thank you you have no objection to including these two documents in the record i do not i do not and since we're talking about those two i'll just briefly follow up on  that you know to the extent the defendant mr sands is arguing that the court should have considered those documents that were not in front of that i think he fails to establish clear error but beyond that  i don't really think they move the needle that much in terms of the court's decision because as the fourth circuit pointed out in paris it was the judge's decision he had to make the factual determination  wasn't up to the agency and beyond that as i pointed out my brief they didn't see in fact he did use the terms obliterated contrary to the gloss that mr sands gave it in his initial opening brief but to circle back judge gibbons to the point you are making in terms of what we're talking about here is those both alteration and obliteration an alteration is really not a complicated term and that was the point that the first circuit made in adams and the headlock alteration to alter something is a concept that everybody understands this is not a very difficult complicated technical t it's something that we get as they said it doesn't cry out for elaboration and so when one is what is it it means i think we go to the dictionary definition is it's make something different   the numbers there it looks very much different than it did before they began and particularly the number on the frame one cannot actually if one is just looking at the number on the back of this frame here one cannot tell what that is by consulting a three in total all particularly the serial number that's on the barrel is in the best condition one can piece it together but if you're looking one by one of these serial numbers making gets to the parsing the different definitions of the ninth circuit looked at in color and saying or one could say that alteration means changing a three to an eight for instance that's the example that depends was lost somebody who would give to alter but in the context of this statute in the plain meaning what people understand these terms to mean that is not the most faithful definition in the ninth circuit really went into looking the various dictionary definitions and said alteration really doesn't mean or only or in this case the best interpretation or definition means changing it three to an eight making something into something else when it means making something different materially so and that's why you see in corner and then in pariahs and the other circuits had to follow that they say is there or has there been a material change  a real serial to be able to read it well if that's the point and so the courts have rightly so when they've talked about materiality said does it make it more difficult to read the number  and that's where you get into the materiality because and this goes to kind of the philosophical point you're making juggler earlier is that as science progresses it may be the case that we can eventually figure out no matter how many severe grinding job somebody does it always figured out that can't be what these terms mean it defies the plain language it defies the statutory and the guideline purposes that so long as the expenditure of extraordinary means we can eventually figure it out that certainly stymies the policy goals of making sure that law enforcement can easily access these serial numbers and again  has there been a material change makes accurate information less accessible and that has been the standard that the courts across the country the circuit court have adopted so the for not force or the fifth circuit seventh eighth ninth have adopted that the six circuit in law of the first circuit articulated that standard a little bit differently but it's the same concept they said is a serial number appreciably more difficult to make out that's the same concept it just expressed in slightly different terminology and that materiality concept is one that is very appropriate for the fact finder to be making particularly in the context of  thought was compelling and they talked about how inherent in the altar there is some materiality component and that was kind of one of the issues in that case and they said look again alter is not a difficult concept people understand with what it is implicit in there is some degree of materiality because if there's just a facial scratch from as the defendant hypothesized dropping it or something that really doesn't  get us there so i think really what we're talking about is implicit in that term what people understand alter to mean is a degree of materiality so let me ask you this then the whole purpose of this is to make the to make it easier for the law enforcement to figure out what the number is and accessibility so if you've got a gun like this one that has the serial number in two different places and i think you said the one on the barrel is you can that's accessible by your definition but the one on the back of the gun is not and it clearly isn't to me i could not look at that and tell you what number there's a number that appears to be totally missing right after the second s what am i to do with the fact that the saying goes on you can see the number one place but you can't see it the other which means that law enforcement can pick it up and say wow right this is s b six three six six two and the thank you because that's one of the the next topic i wanted to turn one of them meets the standard then the either the enhancement or nine twenty two cases met and that makes good sense from a policy standpoint because and again judge dr you point this out there are actually three locations on a firearm that have serial numbers on this particular one on the frame on the barrel and on the slide but these components you can do in about five seconds or so depending on your dexterity at three thirty with this weapon you can field strip this weapon and have sitting out here on the desk frame in one piece the barrel another piece in the slide you can interchange amongst this is a taurus i forget what the model is you can interchange those pieces so that is the reason that the courts look to any one in so long as anyone is an altered then you set up something that could be mishandled or misidentified or whatever right and it's my understanding that under federal law  the only serial number location that's required on the frames would be the one in the back as in common parlance we talk about because the slides are transferable because you can transfer out barrels so so long heck of it is would be the dangerous piece is that what you're telling me yes the framers of the us on the frame of it that's the location that's required absolutely required by federal law but the broader point is so long as any one of these has been obliterated or altered to the great makes it much more difficult for law enforcement we get into the heartland of what these restrictions are i just didn't i don't know guns and i didn't quite understand that point but i you've made it for me thank you your honor and judge griffin i believe it was you had asked counsel what was in the record in terms of whether or not defense counsel had mentioned  significantly defaced but still readable albeit barely but he noted that one of the numbers was complete was totally obliterated in the legible that's at page eighty one twenty two but to answer your question because it is an alteration there the if all we were dealing with was a statute or guideline that prohibited obliteration that i think his argument might have some legs because one could look at least the have the guy and they could actually look at it quote which is basically what i'm doing with the i pad as i'm putting it up to my to my eye and it's legible i mean you know if you have picture from car away i mean you've got to be able to get up to it and see the gun would be the best evidence that he had gotten there and here's the gun when you see it or not but of course you don't agree with the naked eye anyway right so then we have to decide whether in your view it's been the theory of altered which makes it more difficult well i would i would think most attempts would do that  temp have to be a substantial effort toward the completion of it which i would be creating something a little more difficult to read but if i can finish answering your question about the attempt i think the argument might have some legs if all the statute for that i think prohibited was obliteration but it doesn't it prohibits alteration and i think we have a complete alteration think alteration was put in there i attempt to change its form or attempt to obliterate the yes i guess what you want to say alter well the the practical that report importing materiality making it different that guy's on the way he's attempting obliterate he just didn't get there the same thing i think is right and that's why the commission in congress used the word alteration and not just obliterate to take up the attempted obliteration but we still have alteration and that dan burton was satisfied here and there's something clearly erroneous about judge money's findings that it is much more difficult to make out they were clearly altered and they were done for the purpose of masking the identity of the weapon we've asked that the judgment of the district  be the actual test the be all and end all our position is if it can be seen and read by the naked eye then no matter what test you use then it doesn't qualify and again some of these other cases  there was talk about this fourth circuit case where they said the judge looked at it at sentencing and determined that the enhanced when applied but in that case the judge looked at the gun from eighteen inches away and the regulations here that the the serial number has to be i say at least one sixteenth of an inch in height and i'm not sure i mean eighteen inches is a long distance to be looking at that and even if it was pristine i'm not sure the judge would have been able to read it but all of these cases the six circuit the unpublished case in one of the court talked about the fact that all those visibly stretched it said the three officers in the lab technician had difficulty reading it and that was what they came to on that but the i think this case bears out the legal maxim about hard cases make bad law and i think that because we have all of these cases where serial numbers are destroyed as i argued before and they say that if it's materially different from scratch through one thing that came to me a while ago and i'm glad that i remember that there's a commercial i see every now and then for i think it's liberty mutual insurance where they're complaining about the insurance company they had and woman standing there and she said i bumped into another car and there's a scratch on it that you could fix with a pen but they're jet jacking up my insurance rates and it's that same sort of thing that if there's a minimal scratch that i suppose in some ways even a single lining however small drawn through the serial number pardon no but if that's the kind of analysis that these other courts of appeals seem to be using that their cases are so bad and we come up with this that if it that and again in terms of being altered if a single line is drawn through the serial number of the government's position that would alter the serial number therefore make  apply and it is the purpose of the statute and first the statute was not or the guideline came from the statute the statute is the same thing the purpose of all of this is to make it more difficult to  trade in stolen guns and so on and easier for the authorities to trace them and these are traceable and again i think the court one of you mentioned in terms of materiality that if you can read it and the a t f agents could read it i don't see how any of these scratches could be material if they can read it with their naked eyes at the scene while they're performing that the search and finally  just again would point out the comments i made in the briefs and in the reply brief supposed judge schoolies comments about how the the interplay between the courts and federal agencies interpreted the regulations that here one under that analysis one would expect the a t f to err on the side of making sure that it counts citing it as being obliterated or altered and then let the courts decide but here they didn't even