with your telling us that what the client did here didn't involve alteration or obliteration of the weapon that's correct even though we removed parts of the weapon and scrape the serial numbers off another part of the way well we certainly don't know from the record that the defendant did that or we want to know how or where he was found with had this happen to him yes i think that the argument turns on a slightly different point ok and that is  information less acceptable constitutes alteration or obliteration how do you do that there are two reasons the card does not control this case the first is the court would have to dispense with the appellants arguments regarding the the fact that none of the identifying marks are in fact serial numbers before ever arriving at carter there was no dispute in carter that there was a properly placed serial number on that firearm second where it was with wear carter on the firearm where was the firearm in question in this case yes there were three identifying marks one on the sly one on the barrel and you third on an attached plate which had been attached to the underside of the frame none of those constitute a serial number within the meaning of the guidelines the slide and barrel do not because there is no requirement that any serial number of the place to on a slide are verrall they are gratuitous manufacturers marks no enhancement may be impose for the alteration or obliteration of a mark which is not made pursuant to some regulation with the difference between what what was it what kind of weapon was this o'clock o'clock and glock forty nine  what was the difference between the firearm in question and any adenike all but brand new glock nine millimeter right out of the box this the experts testimony in this case was that based on his review of a number of clock weapons the difference was that there were numbers which were placed on the slider barrel which had been ground off additionally i mean if we could go to the manufacturer and say give same manufacturer put in the same stream etc what would be the difference between the hypothetical weapon i'm describing in the weapon in question here the fact that there were two numbers one on the slide one on the barrel which had been ground away and the existence of an attached plate to the underside of the frame a new glock of the same manufacturer would have numbers on the slide and barrel and a plate attached under the frame the court has i think available in the excerpts of record sample exhibits from the government nine millimeter i described in the one in this case is the one in this case ha a plate removed however my argument is that clock did not comply with federal regulations in place in those numbers and that the enhancement guideline that that when the sentencing commission drafted the enhancement and used the phrase serial number they had a specific meaning in mind that specific meaning is found in eighteen u s c nine twenty three i which describes the appropriate placement of serial numbers it requires that a serial number be in craved or cast into the frame of the fire plaza because the manufacturer didn't comply with the regulation we get off on this one is that kind of where we are with the no person should be subject to an enhancement for any action taken towards a firearm which does not bear a serial number within the meaning of federal law but if i may pose a hypothetical if if glock decided to attach a serial number on a piece of paper with a piece of tape and somewhere in the stream of commerce someone removed it and my client ultimately possessed it the logical extension of the government's argument and i take the court's questions would be that that person would be subject to an enhancement simply because they possess something even though the the number be displayed now on newer moments on the on the window or the windshield in one or two other places but as a means of theft insurance many manufacturers will randomly put the serial number in another place on the automobile with the obliteration of that randomly placed visual identification how does that play into what we're talking about here well i  slide or barrel they're simply not required and it's this particular significance because even if there is a number on a slide or feral it is perfectly legally permissible for an x felon to possess a slide or a barrel or to possess a slider with a defaced the ground off serial number a slider barrel as the government's expert testified in this case it's not a firearm it is a removable component piece of a firearm and the fact that of that a manufacturer has decided to add a crew to witness marking good morning on that means the court my name is mary jane chan and i represent the united states in this that peel this court should not disturb the sentencing jury's finding that beyond a reasonable doubt mr romero martinez  firearm with an altered or obliterated serial number this court should have from the district courts application of the two k two point one before enhanced that the glock firearm at issue originally had three serial number stamped on it when the firearm was found in mr martinez it's romero marching is this possession however no serial numbers were visible but were visible were markings showing that they had been removed one serial number had been forcibly removed using metal cutting tools and two of them had been ground off the you've heard the argument the defendant's counsel that was put this serial number in a lawn compliant position you agree with that as a starting point the united states does not agree that it was noncompliant with respect to the metal plate that was attached to the frame of the firearm it complies with mine twenty one n one twenty three i n also regulation twenty seven c f r for seventy eight point nine t two a one i which says that the serial number has to be a fixed in a way that is not easily removable and that's conspicuous in this case the metal plate and this was testified at the sentencing hearing or the sentencing trial actually by a t f agent kong the plate is actually stamped into the frame through the manufacturing process of the frame it's not a six later on it's actually part of the frame it just happens to be a different and more make a durable material the glock itself is made of polymer so the frame is actually plastic whereas the frame is metal so it's clear the number will stand out more clearly and it's also more permanent it's harder to erase or rub off that complies with nine twenty three ah it also complies with the regulations and the regulation is consistent with the statute the defense or the appellant has insisted on reading and basically the word directly into nine twenty three i was stating basically that not only do this year all numbers have to be on the frame or receiver that they have to be directly on it that there cannot be no material or of difference material between the frame and the actual thing that the the serial number is sitting on and that's not in the language of the statute so no your honor none of them were there were three one was on the barrel one was on the slide and if you look at the exhibits that are attached in the excerpts of record you can just see that they're sort of a shiny metal place where they've been ground off and that's what agent contests a fight to but that was the evidence that they had been obliterated in that way and by the way agent kong is testimony actually used all three words also heard removed and obliterated interchangeably to describe it and one of the problems with the the limitation or the narrow definition that the opponent tries to place on the term obliterate it is that it's completely inconsistent with the plain language  of the word obliterate there's no restriction on it there is not a technical term of art and there is no such restriction on it in the guidelines the plain language as it's used in the dictionaries is to do away with completely what obliterated is defined as removed is to do away with so in a way obliteration is the subset of removal and the two really have overlapping definitions in this case that serial numbers fall within overlap of the definition so they were both obliterated and removed and you agree with defense counsel that we should construe the guideline in conjunction with the regulations pertaining to serial number no your honor i think the government's position is that the definition of serial number also is not a term of art and there's nothing in the guidelines that refers to nine twenty three i or the requirements that are imposed upon many factors which are just the most logical construction using our usual modes of statutory and regulatory interpretation your honor actually nine twenty three i which talks about serial numbers doesn't define the serial numbers it simply says that manufacturers have to put a single serial number on the firearm so it doesn't define serial number it simply refers to manufacturers in respect with respect to serial numbers so there's another problem with interpreting that with respect to the guidelines or to k two point one before because the guideline specifically refers to nine twenty one three which is the definition of firearm to explain what it is the wording of the enhancement says that the enha when the firearm that was possessed had been altered or obliterated serial number and then references to application note one which says if you want to know what firearm means go look at eighteen u s c nine twenty one three then when you look at that definition it doesn't simply say it's the frame or receiver of a firearm the first definition it has four definitions part a says any weapon that can be easily or readily changed into something that can produce be a projectile  device and then secondly secondarily to that it's a frame or receiver of such a weapon and then it also goes on to say that a silencer or a muffler also counts as a firearm by itself as well as a destructive device but it excludes antique firearms that definition would be supplied superfluous and and really sort of a waste if the sentencing commission really intended the only serial numbers to be considered to be the serial number that's on the frame o receiver the sentencing commission could have done this very clearly or indicated this by either referencing nine twenty three i or it could have simply changed the language to say that the enhancement only applies when the serial number on the frame or  or weapon has been eliminated and that's not because if we accept your broad interpretation what's wrong with defense counsel's hypothetical that there could be some other document that the serial number of people would be attached to and that would trigger the enhancement i'm sorry well it's hypothetical if you get a piece of paper attached that was supposed to be go with the gun that there are a barcode with he's even if somebody just you know if you don't want that first of all that is not the case at hand and other but i think the argument could be made that that would count specifically because it is the serial number that would be make it easier for law enforcement to track the firearm in question and also because it only  it's not it doesn't seem like a commonsensical argument and it is a theoretical argument and part of the reason it's my answer is that we could theoretically say that it applies but i don't think you'd ever come into that effect partly because i think you have real issues of but it makes more sense to say if rather than adopt out of her confront it was say let's let's look at the statute and regulations and what serial numbers mean and make more sense to me to look at that i think that there's a difference between that the nine twenty two case statute for example which applies to the general population and sentencing and handsome and i think the sentencing hanson is intended to be brought partly because you know the courts judge hawkins case in ceasing and also  courts case and carter there's a very pretty broad admission or broad rationale to that the sentencing enhanced men which is to prevent or to penalize anybody who has a criminal history and mind you that the enhancement really only applies to people who have prior felony histories that they are penalized very broadly whenever they're involved with firearms with your own numbers that it manipulated in a way that makes it harder to trace both the lineage of it and also the the forensic value in terms of tracing their two types flaws in the government's argument will turn out to be a good one either serial number means a very broad category of things which is up to the individual manufacturer determine to determine and whatever they do i want to address counsel's reference to twenty seven c f r four seventy eight ninety two because it is important that that regulation nine twenty three i says engraved or cast on the frame or receiver  accordance with regulations promulgated by the attorney general twenty seven c f r four seventy eight was promulgated and said that the serial number of a otherwise be otherwise conspicuously placed on the firearm now we have to look at the fact that we have a regulation which is inconsistent with its enabling statute what ninety two nine twenty three i said is the attorney general can pass regulations telling manufacturers how to in grave or cast a serial number on the frame or receiver and the attorney general exceeded that authority in allowing the otherwise conspicuously placed language so i think the courts questions are very well taken because if if the court construe enhancement to mean to say that serial number means what it says a serial number as described by federal law mr merrill martinez may not have this enhanced been applied to him even though this manufacturer got shall we say ninety percent of the way towards compliance there is no difference between the two percent compliance of the paper tag or price tag and the ninety percent compliance of an a fixed metal plate i want to address counsel's reference to the record khan's testimony we with the characterization by the government of mr khan's testimony he testified that in his expert opinion no number had ever been in grave to cast impressed into the frame or receiver of the weapon that means this is a non compliant identifying mark and therefore not a serial number and therefore not enhanced civil under the sentencing guidelines ok thank you for your argument they both sides