58 F.4th 18
1st Cir.2023Background
- Between May and July 2019 an ATF confidential source and an undercover officer purchased three Glock-style "ghost" pistols (two without serial numbers) and an Uzi-style machinegun (with an obliterated serial number) from Terrick Bishoff in several controlled transactions.
- Bishoff discussed lack of serial numbers and availability of silencers/fully automatic weapons with the UC; sales were clandestine and Bishoff admitted to dealing drugs.
- Bishoff was indicted on three counts: possession/transfer of a machinegun, dealing firearms without a license, and possession of an unserialized firearm; his supplier John Shaw was separately indicted and later cooperated.
- The PSR applied two four-level Guidelines enhancements: USSG §2K2.1(b)(5) (trafficking) and §2K2.1(b)(6)(B) (possession in connection with another felony), producing a higher Guidelines range than the government initially estimated.
- At sentencing the district court heard testimony (including Shaw and the UC), applied both enhancements, granted a downward variance, and sentenced Bishoff to 60 months imprisonment.
- On appeal Bishoff challenged both enhancements and argued his sentence was procedurally and substantively unreasonable (including disparity with Shaw’s 21-month sentence). The First Circuit affirmed.
Issues
| Issue | Government's Argument | Bishoff's Argument | Held |
|---|---|---|---|
| Whether USSG §2K2.1(b)(5) trafficking enhancement applies | Circumstantial evidence (sales of unserialized guns, texts about “no numbers,” clandestine dealings, discussion of drugs) shows Bishoff had reason to believe buyer would use/dispose of at least one gun unlawfully | Bishoff sold at most one machinegun to UC and thought UC was a veteran/collector; no evidence he knew UC intended unlawful use | Affirmed: court reasonably found by preponderance that Bishoff had reason to believe the buyer would use/dispose of firearms unlawfully, so enhancement applies |
| Whether USSG §2K2.1(b)(6)(B) other-felony-offense enhancement applies | Shaw’s testimony (guns exchanged for drugs or gun-assembly paid with drugs) made firearms connected to a drug felony | Bishoff attacked Shaw’s credibility and argued inconsistencies and incentives to lie | Affirmed: district court credited Shaw’s testimony; court did not abuse discretion in applying the enhancement |
| Whether Bishoff’s 60-month sentence is procedurally or substantively unreasonable / disparate from Shaw’s sentence | Sentencing court considered §3553(a) factors, had different offender profiles (Shaw cooperated and had plea deal) | Disparity with Shaw (21 months) shows unreasonableness | Affirmed: no procedural error; disparity justified by material differences (different charges, cooperation, plea agreement) |
Key Cases Cited
- United States v. Ilarraza, 963 F.3d 1 (1st Cir. 2020) (standard of review and acceptance of implicit factual findings)
- United States v. Marceau, 554 F.3d 24 (1st Cir. 2009) (seller need not have knowledge of a specific felonious plan; circumstantial proof of illicit intent)
- United States v. Taylor, 845 F.3d 458 (1st Cir. 2017) (obliterated or removed serial numbers indicate anticipation of criminal use)
- United States v. Carbajal-Váldez, 874 F.3d 778 (1st Cir. 2017) (district court may implicitly adopt factual findings)
- United States v. Candelario-Ramos, 45 F.4th 521 (1st Cir. 2022) (§3553(a)(6) disparity analysis focuses on national disparities and recognizes material differences among co-defendants)
- United States v. Reyes-Santiago, 804 F.3d 453 (1st Cir. 2015) (cooperation and plea/posture differences undermine disparity claims)
- United States v. Mateo-Espejo, 426 F.3d 508 (1st Cir. 2005) (defendant must compare similarly situated defendants when arguing disparity)