Background
Police responding to a reported theft found four firearms in a vehicle used by Markel Trevon Smith and a codefendant. One was a Glock pistol fitted with a conversion device, or “switch,” that allowed automatic fire and therefore qualified as a machinegun under federal law. The Glock displayed the same serial number in three places: the number on the slide was fully legible, while markings on the frame and barrel chamber had been scratched so that only one or two characters remained visible.
Smith was charged under 18 U.S.C. § 922(o) with unlawful possession of a machinegun. After the district court rejected his Second Amendment challenge, he pleaded guilty without a plea agreement. At sentencing, the court applied the four-level enhancement in U.S.S.G. § 2K2.1(b)(4)(B)(i) for a firearm whose serial number was modified so that the original information was illegible or unrecognizable to the unaided eye. That produced a Guidelines range of 57 to 71 months, and the court imposed a 57-month prison term followed by three years of supervised release.
The Court’s Holding
The Fourth Circuit affirmed Smith’s conviction. Applying circuit precedent, the court held that machineguns are not in common use for a lawful purpose and fall outside the Second Amendment’s protection as dangerous and unusual weapons. Because Smith conceded that the Glock fitted with a switch qualified as a machinegun, his facial and as-applied challenges to § 922(o) failed.
By a 2-1 vote, the panel reversed application of the serial-number enhancement. The majority construed the amended 2024 Guideline to require the government to prove by a preponderance of the evidence that modifications made the firearm no longer traceable. Because the Glock retained a complete, legible serial number on its slide and was in fact traceable, the majority held that the enhancement did not apply even though the other two serial-number markings had been rendered largely illegible.
The court vacated Smith’s sentence and remanded for resentencing without the enhancement. Judge Agee concurred as to the conviction but dissented from the sentencing ruling, reasoning that the Guideline’s text requires only one iteration of a firearm’s serial number to have been rendered illegible.
Key Takeaways
- The federal prohibition on possessing machineguns did not violate the Second Amendment, either facially or as applied to Smith’s switch-equipped Glock.
- In the Fourth Circuit, the 2024 version of U.S.S.G. § 2K2.1(b)(4)(B)(i) applies only if serial-number modifications leave the firearm untraceable.
- A fully legible serial-number marking that permits tracing defeats the enhancement even when matching markings elsewhere on the firearm have been made illegible.
Why It Matters
The decision creates a traceability inquiry for the modified-serial-number enhancement in Fourth Circuit sentencing proceedings. District courts must determine whether the firearm was actually traceable, and the government bears the burden of proving otherwise by a preponderance of the evidence.
The ruling also places the Fourth Circuit at odds with the Third Circuit’s interpretation of the amended Guideline and with several circuits’ decisions under its earlier wording. At the same time, the opinion reinforces existing Fourth Circuit precedent that machineguns, including ordinary pistols converted by switches, are outside the Second Amendment’s protection.