Under Amended U.S.S.G. § 2K2.1(b)(4)(B)(i), a Scratched-but-Legible Serial Number Does Not Trigger the Enhancement; Government Must Prove Illegibility to the Unaided Eye

Introduction

In United States v. Eddie Flournah, Jr. (11th Cir. Sept. 18, 2026) (unpublished), the Eleventh Circuit reviewed a 127-month sentence imposed after Flournah’s conviction for possessing a firearm as a convicted felon. Flournah raised two Sentencing Guidelines challenges: (1) whether a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) applied because his firearm was possessed “in connection with” another felony offense—here, drug possession with intent to distribute; and (2) whether a separate four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B)(i) applied for a firearm with a serial number that was scratched but (according to the officer and ATF trace) still readable.

The decision is notable for applying the Eleventh Circuit’s expansive “potential to facilitate” approach to § 2K2.1(b)(6)(B), while also enforcing the 2024 amendment to § 2K2.1(b)(4)(B)(i) that narrows the serial-number enhancement to cases where the original serial-number information is “illegible or unrecognizable to the unaided eye.”

Summary of the Opinion

  • § 2K2.1(b)(6)(B) affirmed: The court held the district court did not clearly err in finding that a loaded pistol carried in Flournah’s waistband (with an extra magazine) was possessed “in connection with” his felony drug-trafficking conduct because it had the potential to facilitate or protect that offense.
  • § 2K2.1(b)(4)(B)(i) vacated: The court held it was clearly erroneous to apply the serial-number enhancement under the 2024 guideline language because the record established the serial number was readable (the seizing officer read it and confirmed it via ATF trace), even if a photograph made it appear partially illegible.
  • Disposition: The Eleventh Circuit affirmed in part, vacated the sentence in part, and remanded for resentencing without the § 2K2.1(b)(4)(B)(i) enhancement.

Analysis

Precedents Cited

Standards of review and sentencing framework

  • United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020): Cited for the overall abuse-of-discretion framework when reviewing a sentence’s procedural reasonableness. This supplies the appellate posture: the panel is not resenting anew, but checking for procedural error, including incorrect guideline calculations.
  • United States v. Hernandez, 167 F.4th 1113 (11th Cir. 2026): Cited to separate (i) de novo review of guideline interpretation/application from (ii) clear-error review of the factual findings underpinning the calculation. That division matters because the “in connection with” determination under § 2K2.1(b)(6)(B) is treated as a factfinding, reviewed deferentially.

“In connection with” under § 2K2.1(b)(6)(B): the Eleventh Circuit’s “potential to facilitate” line

  • United States v. James, 135 F.4th 1329 (11th Cir. 2025): Cited twice for two propositions central to the outcome: (1) the district court’s “in connection with” determination is a factfinding reviewed for clear error; and (2) the “touchstone” is the firearm’s potential to facilitate the other offense. This framing lowers the government’s burden from proving actual use to proving facilitative potential.
  • United States v. Irons, 176 F.4th 1275 (11th Cir. 2026): Used to emphasize that the ways to satisfy “in connection with” are “expansive,” and to list accepted theories: the gun potentially emboldened the defendant, could have been used to complete the offense, or was available if law enforcement attempted to thwart the offense.
  • United States v. Brooks, 112 F.4th 937 (11th Cir. 2024): Quoted (through Irons) as the source of the “emboldened/could have used/available” formulations. Brooks supplies a concrete doctrinal toolkit that the panel applies to a typical drugs-and-gun fact pattern.
  • United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013): Cited for the principle that evidence the defendant could have used the firearm to protect criminal activity can support the firearm–offense connection. This precedent reinforces that “facilitation” includes deterrence and protection, not just active use.
  • United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019): Cited to highlight relevant factual indicators—whether the firearm is loaded and possessed with drugs in public— when assessing its potential to facilitate drug crime. That focus directly maps onto Flournah’s waistband carry with a loaded pistol and spare magazine.

Second Amendment challenge foreclosed by binding precedent (not the basis of the remand)

  • United States v. Carter, 180 F.4th 1285 (11th Cir. 2026); United States v. Hicks, 166 F.4th 933 (11th Cir. 2026); United States v. Dubois, 139 F.4th 887 (11th Cir. 2025): Cited in a footnote to explain that circuit precedent forecloses Flournah’s facial and as-applied Second Amendment attack on 18 U.S.C. § 922(g)(1). The panel treats this issue as controlled and does not extend the law here.

Government’s burden at sentencing

  • United States v. Perez-Oliveros, 479 F.3d 779 (11th Cir. 2007): Cited for the rule that the government bears the burden to establish facts necessary to support a sentencing enhancement by a preponderance of the evidence. This case is decisive in Part II: the government’s proof did not satisfy the amended “unaided eye” illegibility standard.

Legal Reasoning

1) Affirming § 2K2.1(b)(6)(B): why waistband carry plus drug trafficking satisfies “in connection with”

Flournah did not dispute the existence of “another felony offense” (drug possession with intent to distribute). The dispute was only over whether the firearm was possessed “in connection with” that drug felony. Applying the Eleventh Circuit’s facilitation-potential doctrine, the court upheld the enhancement based on three core factual and inferential steps:

  1. Accessibility and readiness: Flournah had a loaded pistol in his waistband and an extra magazine in his pocket, i.e., immediate access and continued capacity to fire. Under United States v. Bishop, loaded public possession alongside drugs is probative of facilitative potential.
  2. Protective function for distribution activity: The panel reasoned the gun could be used to protect the nearby drug supply or facilitate possession-with-intent-to-distribute, aligning with United States v. Carillo-Ayala (protection of criminal activity suffices).
  3. Common-sense inference reinforced by testimony: Officer testimony that drug distributors commonly carry firearms to guard against robbery supported the district court’s inference that the gun was likely connected to the drug offense.

Importantly, the panel did not require proof that Flournah displayed, used, or fired the weapon. Under United States v. Irons and United States v. James, it is enough that the firearm had the potential to facilitate the felony (including being available if law enforcement intervened). Given clear-error review and the facts, the panel found no reversible mistake.

2) Vacating § 2K2.1(b)(4)(B)(i): how the 2024 amendment narrows the serial-number enhancement

The panel’s remand turned on the guideline’s text as amended in 2024. The earlier version applied if a firearm had an “altered or obliterated” serial number. But the 2024 version applies only if the serial number was modified so that the original information is “rendered illegible or unrecognizable to the unaided eye.”

The government’s proof was a photograph that appeared to show partial illegibility. The record, however, established the seizing officer read the complete serial number and confirmed it with an ATF trace report. The government also conceded that photographic artifacts (angle, pixilation, refraction, lens aberration, etc.) can make a readable number appear unreadable in a photo.

Applying United States v. Perez-Oliveros, the panel held the government failed to carry its burden to prove the serial number was illegible or unrecognizable to the naked eye. Where the evidence shows the serial number was readable in real-world conditions, a photograph suggesting otherwise is insufficient to meet the amended standard. Thus, applying the enhancement was “clearly erroneous,” requiring vacatur and resentencing.

Impact

1) Serial-number enhancement: evidentiary rigor under the “unaided eye” test

The most practically significant aspect of this opinion is its enforcement of the 2024 amendment’s narrower trigger for § 2K2.1(b)(4)(B)(i). Going forward, litigants in the Eleventh Circuit should expect:

  • Proof must track the text: The decisive question is not whether the serial number is “scratched” or “marred,” but whether it is illegible or unrecognizable to the unaided eye.
  • Photographs may be inadequate (or misleading): When the record includes testimony that the serial number was readable and used for an ATF trace, a photo that looks unclear will likely not satisfy the government’s burden without additional support (e.g., producing the firearm, in-court inspection, or reliable testimony specifically addressing unaided-eye illegibility).
  • Sentencing litigation will turn on concrete demonstrations: Expect more disputes about the best evidence—live inspection, higher-quality imaging, or testimony precisely tied to “unaided eye” legibility.

2) “In connection with” remains broad for guns and drug trafficking

The decision also underscores the durability of the Eleventh Circuit’s broad approach to § 2K2.1(b)(6)(B): a loaded, readily accessible firearm carried on the person during drug-trafficking conduct will commonly satisfy the enhancement because facilitation potential can be inferred from accessibility, ammunition readiness, and the protective role firearms play in drug distribution.

3) Limited precedential weight but strong persuasive value

Although labeled “NOT FOR PUBLICATION,” the opinion is likely to be cited for its straightforward application of the amended guideline text and its caution against relying on photographic ambiguity where real-world legibility is established. Its reasoning provides a template for district courts applying the amended standard.

Complex Concepts Simplified

“In connection with” (U.S.S.G. § 2K2.1(b)(6)(B))
A firearm is possessed “in connection with” another felony if it could help the other felony in some way—even if the defendant never actually uses it. In this circuit, it is enough that the gun could protect the drugs, embolden the defendant, or be available if police intervene.
“Potential to facilitate”
A practical, common-sense inquiry: did the gun’s presence make the other crime easier or safer to carry out (e.g., deterrence against robbery)? It focuses on capability and circumstances, not actual discharge or brandishing.
“Illegible or unrecognizable to the unaided eye” (U.S.S.G. § 2K2.1(b)(4)(B)(i) (2024))
The serial-number enhancement applies only if an ordinary person, using no tools or magnification, cannot read or recognize the original serial-number information. A serial number that is scratched but still readable does not qualify under this amended text.
Burden of proof at sentencing / “preponderance of the evidence”
The government must show an enhancement applies by demonstrating it is more likely than not that the required facts are true. If the evidence is equivocal (e.g., a blurry photo versus testimony that the number was readable), the government may fail to meet this burden.
Standards of review: “de novo” vs. “clear error”
“De novo” means the appellate court gives no deference and decides the issue fresh (typically legal questions). “Clear error” is highly deferential; the appellate court reverses only if left with a firm conviction a mistake occurred (typically factual findings).

Conclusion

United States v. Eddie Flournah, Jr. delivers two key lessons. First, under Eleventh Circuit doctrine, a loaded, readily accessible firearm carried during drug-trafficking activity readily supports § 2K2.1(b)(6)(B) because the gun’s potential to facilitate the offense is enough. Second—and more doctrinally specific to the 2024 Sentencing Guidelines—the serial-number enhancement in § 2K2.1(b)(4)(B)(i) now demands proof that the serial number’s original information is illegible or unrecognizable to the unaided eye; a scratched but readable number, especially one successfully read and traced, will not suffice. The opinion thus both reinforces a broad “in connection with” standard for guns-and-drugs cases and tightens evidentiary discipline for serial-number enhancements under the amended guideline text.