United States v. Bishoff ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1487
UNITED STATES OF AMERICA,
Appellee,
v.
TERRICK BISHOFF,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Kayatta, Thompson, and Gelpí,
Circuit Judges.
Christine DeMaso for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Rachel S. Rollins, United States Attorney, was on brief, for
appellee.
January 19, 2023
GELPÍ, Circuit Judge. Appellant Terrick Bishoff
("Bishoff") entered a straight plea to possessing or transferring
a machinegun, dealing in firearms without a license, and possessing
a firearm without a serial number. The district court, by way of
downward variance, sentenced him to sixty months imprisonment. On
appeal, Bishoff claims that the district court erred in imposing
two four-level enhancements -- one for trafficking and one for
possessing a firearm in connection with another felony -- and that
his sentence is procedurally and substantively unreasonable. We
affirm.
I. Background1
Relevant Facts
In February 2019, a Confidential Source ("CS") informed
the government that Bishoff was selling Glock-style "ghost" guns2
in Fitchburg, Massachusetts. Consequently, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives ("ATF") utilized the CS and an
Undercover Officer ("UC") to conduct undercover purchases as part
of an ongoing investigation into Bishoff. The UC purchased
1 We take the facts from the uncontested portions of the
Presentence Report ("PSR") and the sentencing hearing transcript.
United States v. Bermúdez-Meléndez, 827 F.3d 160, 162 (1st Cir.
2016).
2 Ghost guns are firearms sold as sets of parts that can be
assembled at home, and that typically lack markings such as serial
numbers.
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firearms and ammunitions from Bishoff on three separate occasions,
which are detailed seriatim.
The May 10, 2019 Controlled Purchase
On May 10, 2019, the CS called Bishoff and informed him
that his friend, the UC, wanted to buy the Glock-style ghost gun
that Bishoff had previously offered to sell to the CS. The UC
posed as a military veteran. Bishoff told the UC that he had to
go get the firearm and would meet both the CS and UC shortly
thereafter. Around 4:00 p.m. that same day, Bishoff, during a
call with the CS, said that he was heading over to his supplier's
house to get the firearm and that it was custom tailored to include
a silencer.3 About fifteen minutes later, Bishoff called the CS
to inform him that he had the gun and would meet him shortly. Once
at the meeting point, the CS and the UC entered Bishoff's car,
where Bishoff sold the UC the Glock-style ghost gun for $580.
Additionally, Bishoff provided the UC with one magazine and two
boxes of ammunition. Bishoff told the UC that the firearm had no
serial number and, thus, was untraceable. He also offered a fully
automatic Uzi-style gun ("Uzi machinegun") with no serial number
for $2,500.
3 John Shaw, Bishoff's supplier, would later testify that
Bishoff had provided drugs to Shaw (in addition to cash) in
exchange for either guns or the assembly of guns. During one of
the sales, Bishoff admitted to the UC that he was a drug dealer.
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The May 15, 2019 Controlled Purchase
On May 13, 2019, the UC texted Bishoff regarding the Uzi
machinegun. The pertinent text exchange follows:
UC: "I wanted to talk to you about the U... is
it still available?"
Bishoff: "Yes"
UC: "Is it full rock and roll? An [sic] what
about numbers?"
Bishoff: "Yes...2500"
UC: "No numbers?"
Bishoff: "No"
"None"
UC: [thumbs up emoji]
"Are you locked in at 25? Any wiggle room"
Bishoff: "Yes.....and not my price"
On May 15, 2019, the UC and Bishoff exchanged text
messages regarding the availability and sale of the Uzi machinegun.
They met in Fitchburg, MA and drove in Bishoff's car to a nearby
cemetery. There, Bishoff exchanged with the UC the promised Uzi
machinegun along with a twenty-five round magazine for $2,500.
The Uzi machinegun contained an obliterated serial number. They
further spoke about other types of firearms that Bishoff's supplier
could assemble, as well as a silencer for the pistol that the UC
bought on May 10, 2019 (the first transaction between Bishoff and
the UC). Bishoff told the UC that he did not know how long it
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would take to procure the silencer, but he would ask his supplier
and get back to him.
The July 24, 2019 Controlled Purchase
On July 18, 2019, the UC and Bishoff met once again in
Fitchburg, MA and Bishoff showed the UC a Glock-style ghost gun
that was available for $800. Bishoff informed the UC that the gun
had no serial number. On July 24, the UC completed a controlled
purchase of said ghost gun and one magazine for $800. The UC asked
why he had driven a different car to this meeting. Bishoff
explained that he swapped cars every two weeks because he was also
a fentanyl dealer. During the meeting, they also discussed
possible future transactions, specifically the sale of an assault
rifle and a silencer for the previously purchased Glock-style ghost
gun. Bishoff stated that he was going to give money to his supplier
so that he could order the parts for the assault rifle, and once
it was assembled, Bishoff would contact the UC. Bishoff added
that the assault rifle would be fully automatic and have no serial
number.
Procedural History
Bishoff was arrested on September 24, 2019 after being
charged in a three-count indictment with (1) possession or transfer
of a machinegun in violation of 18 U.S.C. § 922(o); (2) dealing
firearms without a license in violation of 18 U.S.C.
§ 922(a)(1)(A); and (3) possession of a firearm (Uzi machinegun)
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without a serial number in violation of 26 U.S.C. § 5861(i). His
supplier, John Shaw, was also indicted and arrested. In a post-
arrest interview, Shaw admitted to assembling the firearms for
Bishoff. Although both men pled guilty, only Shaw entered into a
plea agreement with the government. Under his plea and cooperation
agreement, Shaw received a base offense level of 20, with a two-
level enhancement because the offense involved three to seven
firearms, and a three-level reduction for acceptance of
responsibility. Bishoff, on the other hand, decided to enter a
straight plea. At his plea hearing, the district court explained
that it could not calculate Bishoff's sentencing range until it
had his PSR. The district court also asked the government for its
position as to the Sentencing Guidelines. The prosecutor
understood Bishoff's base offense level to be 18, that a two-level
enhancement applied because the offense involved three to seven
firearms, and that Bishoff qualified for a three-level reduction
for acceptance of responsibility -- resulting in a total offense
level of 17 and a Guidelines sentencing range of "roughly 24 to
30 months" imprisonment.
Bishoff's PSR ultimately upended the government's
estimate by calculating a total offense level of 27 and a
Guidelines sentencing range of 70 to 87 months. The PSR contained
two additional four-level enhancements, one under Guidelines
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section 2K2.1(b)(5)4 for trafficking and another under Guidelines
section 2K2.1(b)(6)(B)5 for possessing a firearm "in connection
with [a] felony offense." Bishoff objected to both four-level
enhancements, arguing that the trafficking enhancement was
inappropriate because he had no reason to know that the sale would
result in further unlawful conduct, and that the other-felony-
offense enhancement was improper because his supplier's statement,
that Bishoff exchanged guns for drugs, was not credible.
At the sentencing hearing, the district court noted
Bishoff's objections to the PSR. The government called Shaw and
the UC to testify in support of the enhancements. The government
argued that the section 2K2.1(b)(5) trafficking enhancement
applied because Bishoff "had every reason to know that the person
he was selling to would be using those guns unlawfully." It
further argued that the section 2K2.1(b)(6)(B) other-felony-
4 Section 2K2.1(b)(5) applies to defendants who "engaged in
the trafficking of firearms." The guideline commentary provides
a two-part definition of trafficking. See USSG § 2K2.1(b)(5) cmt.
n.13(A). The commentary states, in relevant part, that the
defendant must have "kn[own] or had reason to believe that such
conduct would result in the transport, transfer, or disposal of a
firearm" either to a person "whose possession or receipt of the
firearm would be unlawful" or to a person "who intended to use or
dispose of the firearm unlawfully." Id. cmt. n.13(A)(ii)(I)-(II).
5 Section 2K2.1(b)(6)(B) applies to defendants who use or
possess "any firearm or ammunition in connection with another
felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony
offense."
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offense enhancement applied because Bishoff gave Shaw drugs in
exchange for either the guns or the assembly of the guns. The
district court found that the government had proven the elements
of both enhancements but varied downward and sentenced Bishoff to
60 months imprisonment.6 Bishoff objected to both four-level
enhancements, as well as to the substantive and procedural
reasonableness of his sentence.
II. Standard of Review
This appeal contests specific components of Bishoff's
sentence and challenges the overall reasonableness of the
sentence. We review a preserved procedural Guidelines challenge
for abuse of discretion. In applying this standard, we review
factual findings for clear error, and the "interpretation and
application of the [S]entencing [G]uidelines de novo." United
States v. Ilarraza, 963 F.3d 1, 7-8 (1st Cir. 2020). Additionally,
we remain mindful that the government must prove the enhancements'
applicability by a preponderance of the evidence. Id. at 8.
In assessing a sentence's procedural and substantive
reasonableness, "[o]ur review process is bifurcated: we first
determine whether the sentence imposed is procedurally reasonable
and then determine whether it is substantively reasonable." United
6 Shaw's sentencing occurred months later. He was sentenced
to 21 months in prison as per the parties' joint recommendation.
Shaw also testified for the government at Bishoff's sentencing
hearing.
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States v. Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021)
(quoting United States v. Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir.
2020)).
III. Discussion
Trafficking Enhancement
We first address Bishoff's contention that the district
court erred in applying the four-level trafficking enhancement,
USSG § 2K2.1(b)(5). Bishoff challenges the district court's
interpretation of the enhancement, arguing that he only sold one
unserialized machinegun, while the enhancement requires that two
or more guns be sold with knowledge or reason to believe that the
UC would possess or use them unlawfully. To this second factor,
he further argues that the district court erred because there is
no evidence that he knew or had reason to believe that the UC
intended to use any of the guns unlawfully. Rather, he claims
that the UC presented himself as a military veteran who "acted
like a firearm aficionado excited about unique, customizable
guns."
We review the district court's presumed interpretation
of the enhancement de novo. Ilarraza, 963 F.3d at 8. The
Sentencing Guidelines' commentary provides a two-part definition
of trafficking. See USSG § 2K2.1(b)(5) cmt. n.13(A). First, the
defendant must have "transported, transferred, or otherwise
disposed of two or more firearms to another individual," or
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received two or more firearms with the intention to do so. Id.
cmt. n.13(A)(i). Next, he must have "kn[own] or had reason to
believe that such conduct would result in the transport, transfer,
or disposal of a firearm" to a person "whose possession or receipt
of the firearm would be unlawful" or "who intended to use or
dispose of the firearm unlawfully." Id. cmt. n.13(A)(ii). Plainly
read, the enhancement applies if Bishoff transferred two or more
guns while having reason to believe that at least one of them would
be used or possessed unlawfully. As the government does not seek
affirmance based upon an unlawful possession theory, we focus on
whether Bishoff knew or had reason to believe that the UC intended
to use or dispose of at least one of the purchased firearms
unlawfully. We review the district court's factual findings on
this question for clear error. Ilarraza, 963 F.3d at 8.
Although the district court did not make an explicit
finding as to the enhancement, there is no need for the same as
its basis is "clear from context." See id. at 12; see also United
States v. Carbajal-Váldez, 874 F.3d 778, 783 (1st Cir. 2017)
(noting court may "implicitly" adopt findings and resolve factual
questions). "[W]e think it pellucid that the [district] court
adopted the government's view that [Bishoff] had . . . reason[s]
to believe that [the UC] intended to [use or] dispose of the
firearms unlawfully." Ilarraza, 963 F.3d at 12 (reviewing the
court's factual finding for clear error).
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The circumstantial evidence presented at the sentencing
hearing established by a preponderance of the evidence that Bishoff
knew or had reason to believe that the UC intended to use or
dispose of each of the firearms illegally. The government did not
need to prove that Bishoff "had specific knowledge of any specific
felonious plans" or present direct evidence to prove Bishoff's
knowledge. See United States v. Marceau, 554 F.3d 24, 32 (1st
Cir. 2009). Here, Bishoff and the UC discussed on at least five
occasions the lack of serial numbers on the firearms. For example,
during a text message exchange before the Uzi machinegun
transaction, the UC asked Bishoff to confirm that the gun would
have "no numbers," which Bishoff confirmed. Days later, the UC
also questioned whether the offered assault rifle would have
"numbers on it." Possessing a machinegun lacking a serial number,
such as the Uzi relevant here, is prohibited under federal law.
26 U.S.C. § 5861(i). While the fact "that a person seeks to
purchase firearms unlawfully is insufficient, in and of itself, to
put the seller on notice that the buyer has plans to use or dispose
of the firearms in connection with criminal activity," Ilarraza,
963 F.3d at 12, the "removal of a serial number is indicative of
'anticipation that the gun will be used in criminal activity,' and
thus that [Bishoff] knew or should have known that [the UC]
intended to use or dispose of the firearm unlawfully." United
States v. Taylor, 845 F.3d 458, 460 (1st Cir. 2017) (quoting
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Marceau, 554 F.3d at 32). Here, neither of the two Glock-style
ghost guns had serial numbers and the Uzi machinegun had an
obliterated serial number.
Further, Bishoff fails to persuade us that he had no
reason to believe that the firearms would be used for an unlawful
purpose. Although he maintains that the UC was purportedly a gun
aficionado who wanted "unique," custom guns, none of the guns were
in fact customized for him (and yet, sold significantly above
market value). The first Glock-style ghost gun was offered to the
CS before the UC decided to buy it, and he did not know the Uzi
machinegun was a combination of old and new parts until he saw it.
The second Glock-style ghost gun was not the one Bishoff had
previously shown him, but a similar one. While not dispositive,
these facts create a reasonable inference that the desire to
purchase the custom, untraceable weapons instead stemmed from a
desire to use them to unlawful ends. This is bolstered by other
circumstantial evidence before the court, such as the fact that
the sales were conducted in clandestine locations and that Bishoff
and the UC had briefly discussed drugs in the course of the third
sale. Combining all the facts surrounding each sale, we find that
the district court, thus, did not abuse its discretion by finding
that the government had met its burden, and applying the
trafficking enhancement accordingly.
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Other-Felony-Offense Enhancement
Bishoff asserts that the district court erred by
applying a four-level enhancement based on his possession of
firearms "in connection with another felony" without any
explanation. USSG § 2K2.1(b)(6)(B). The government argues that
Shaw's testimony claiming he exchanged the guns for drugs from
Bishoff is credible and supports the district court's application
of said enhancement.
A four-level enhancement applies to a defendant who
possesses "any firearm or ammunition in connection with another
felony offense." USSG § 2K2.1(b)(6)(B). The Sentencing
Commission has explained that the requirement is met "if the
firearm . . . facilitated, or had the potential of facilitating,
another felony offense." Id. cmt. n.14(A). At the sentencing
hearing, the district court asked, "if I believe that they didn't
trade guns for drugs then it wouldn't apply; and if they did, it
would, right?" Thus, the court clearly considered evidence of
such a trade when it applied the enhancement. Based on the record
before us, including the district court's firsthand impression of
the evidence, we conclude that the court did not abuse its
discretion.
In imposing the enhancement, the district court rejected
Bishoff's argument alleging inconsistencies in Shaw's testimony
and concluded that the government had met its burden. Bishoff
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implies that we must "distrust" Shaw's testimony because Shaw had
significant reason to lie and shift blame to Bishoff in order to
minimize his own role in the distribution of the guns. He also
posits that Shaw was inconsistent about the facts surrounding their
exchanges, including whether he was paid in cash or drugs for
assembling the guns. We find both contentions unpersuasive.
Shaw's statements establish that Bishoff gave him drugs in exchange
for guns, for either the firearms themselves or just their
assembly. For our purposes, it does not matter which. Likewise,
while Bishoff did mention to the UC that the price for the Uzi
machinegun was not fixed by him, this does not evidence that Shaw
never got paid with drugs.7 We similarly reject Bishoff's
contention that the district court's sentence implied that "two
addicts sharing drugs" constituted "another felony" for the
purposes of this enhancement. Rather, we see no abuse of
discretion in the district court implicitly finding Shaw's
statements to be credible, and imposing the other-felony-offense
enhancement accordingly.
Sentence Reasonableness
This brings us to Bishoff's final claim, which
challenges the district court's allegedly disparate treatment of
7Bishoff also posits that the fact that Shaw was able to buy
a $200 3D printer suggests that he paid Shaw in cash. We are not
convinced. Shaw could have certainly obtained income from other
sources.
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him at sentencing. He argues that the disparity between his sixty-
month sentence and Shaw's twenty-one-month sentence (which has
already been served) makes his sentence procedurally and
substantively unreasonable.
We undertake challenges to the reasonableness of a
sentence by analyzing the procedural aspects of sentencing and the
sentence's substance. See Marceau, 554 F.3d at 33; Flores-
Quiñones, 985 F.3d at 133. First, we look for any procedural
errors, "such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation
from the Guidelines range." Marceau, 554 F.3d at 33 (quoting
United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). Here,
we already found, supra, that the sentencing court committed no
procedural error in calculating the applicable guidelines, and
thus review the substantive reasonableness of the sentence for
abuse of discretion. Id.
Sentencing courts must consider "the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). This provision is primarily aimed at national
disparities, rather than those between codefendants. United
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States v. Candelario-Ramos, 45 F.4th 521, 526 (1st Cir. 2022).
However, "we have 'recognize[d] that "legitimate concerns may
arise" if a judge sentences "similarly situated coconspirators or
codefendants" to "inexplicably disparate" terms.'" Id. (quoting
United States v. Romero, 906 F.3d 196, 211 (1st Cir. 2018)). With
that in mind, this court has still rejected disparity claims when
a defendant "fail[s] to acknowledge material differences between
[his] own circumstances and those of [his] more leniently punished
[codefendant]." United States v. Reyes-Santiago, 804 F.3d 453,
467 (1st Cir. 2015). In sentence disparity claims, a defendant
must compare apples to apples. United States v. Mateo-Espejo, 426
F.3d 508, 514 (1st Cir. 2005).
Bishoff claims that the district court's divergent
approach to common issues resulted in disparate sentences despite
Shaw and Bishoff being "similar in many ways." We disagree.
First, as Bishoff himself acknowledges, he and Shaw were charged
with different offenses. Bishoff was charged with possession or
transfer of a machinegun, dealing firearms without a license, and
possession of a machinegun without a serial number, while Shaw was
charged with being a felon in possession of ammunition and
possession of a machinegun without a serial number. Moreover, the
court could not have explained the reasons for the disparity during
Bishoff's sentencing hearing because Bishoff was sentenced five
months before Shaw and, at that point, there was no disparity to
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consider or justify. See United States v. McDowell, 676 F.3d 730,
733 (8th Cir. 2012) ("[S]entencing judges . . . are not required
to consider events that have not yet occurred."). Further, Bishoff
and Shaw were situated differently. After being arrested, Shaw
immediately started cooperating with law enforcement and
negotiated a plea agreement. In contrast, Bishoff entered a
straight plea and did not cooperate. "'[M]aterial differences'
between [Bishoff] and [Shaw] such as 'dissimilar criminal
involvement . . . or cooperation with the government' destroy a
disparity claim." Candelario-Ramos, 45 F.4th at 526 (quoting
Romero, 906 F.3d at 211-12). We have previously pointed out that
"the permissible distinction between co-defendants who go to trial
and those who plead guilty, [and] between those who cooperate and
those who do not, . . . undermine an assertion of unjustified
disparity." United States v. Reyes-Santiago, 804 F.3d 453, 467
(1st Cir. 2015) (internal citations omitted). Thus, without
appropriate comparators, Bishoff's disparity claim fails. See
United States v. González-Barbosa, 920 F.3d 125, 131 (1st Cir.
2019).
IV. Conclusion
For the foregoing reasons, Bishoff's sentence is
affirmed.
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