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,

(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.

- 2 - 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.

- 3 - 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

- 4 - 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

(o); (2) dealing

firearms without a license in violation of

(a)(1)(A); and (3) possession of a firearm (Uzi machinegun)

- 5 - without a serial number in violation of

(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

- 6 - 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."

- 7 - 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,

(1st Cir. 2020). Additionally,

we remain mindful that the government must prove the enhancements'

applicability by a preponderance of the evidence.

.

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.

- 8 - States v. Flores-Quiñones,

(1st Cir. 2021)

(quoting United States v. Reyes-Torres,

(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,

. 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

- 9 - 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,

.

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

; see also United

States v. Carbajal-Váldez,

(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,

(reviewing the

court's factual finding for clear error).

- 10 - 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,

(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.

(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,

, 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,

(1st Cir. 2017) (quoting

- 11 - Marceau,

). 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.

- 12 - 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

- 13 - 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.

- 14 - 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,

; Flores-

Quiñones,

. 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,

(quoting

United States v. Politano,

(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."

(a)(6). This provision is primarily aimed at national

disparities, rather than those between codefendants. United

- 15 - States v. Candelario-Ramos,

(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.'"

(quoting

United States v. Romero,

(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,

(1st Cir. 2015). In sentence disparity claims, a defendant

must compare apples to apples. United States v. Mateo-Espejo,

(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

- 16 - consider or justify. See United States v. McDowell,

(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,

(quoting

Romero,

). 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,

(1st Cir. 2015) (internal citations omitted). Thus, without

appropriate comparators, Bishoff's disparity claim fails. See

United States v. González-Barbosa,

(1st Cir.

2019).

IV. Conclusion

For the foregoing reasons, Bishoff's sentence is

affirmed.

- 17 -