United States Court of Appeals For the First Circuit

No. 23-1328

UNITED STATES OF AMERICA,

Appellee,

v.

COREY DONOVAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

Michael G. Eaton, with whom Donna J. Brown and Wadleigh, Starr & Peters, P.L.L.C. were on brief, for appellant. Charles L. Rombeau, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

September 13, 2024 MONTECALVO, Circuit Judge. A jury convicted

Defendant-Appellant Corey Donovan of one count of being a felon in

possession of a firearm in violation of

(g)(1), and

the court sentenced Donovan to 110 months' imprisonment and three

years of supervised release. Donovan appeals both the conviction

and the sentence. On the conviction, he argues that the district

court erred by improperly allowing a witness, his girlfriend Kelley

Finnigan, to invoke a blanket Fifth Amendment privilege and by

failing to provide limiting instructions under Federal Rule of

Evidence 404(b) that he requested before trial. On the sentence,

he challenges the district court's application of a mandatory

sentencing enhancement based on its finding that two oil filters

were sufficiently modified to be considered homemade silencers.

For the following reasons, we affirm.

I. Background

On March 26, 2021, federal agents from the Bureau of

Alcohol, Tobacco, Firearms and Explosives ("ATF") executed a

search warrant of Donovan's residence, a large rural property in

Wilmot, New Hampshire.1 At the time of the search, there were

multiple cars on the property. Relevant to our discussion, the

1 While the search warrant is not at issue on appeal, it was executed after an informant told law enforcement that Donovan was in possession of multiple guns. When the search began, Special Agent Forte saw ammunition in one of the vehicles on the property and applied for and received a subsequent search warrant to search the vehicles on the premises.

- 2 - agents searched a Jeep, which was registered to Donovan, and a

broken-down Hyundai. The agents also searched several structures

on the property, including "a large barn/woodshed."

From Donovan's Jeep, agents recovered a Mossberg model

500 20-gauge shotgun strapped to the ceiling rail of the vehicle

and twenty rounds of 20-gauge ammunition from the center console.

In the Hyundai, the agents found a box of ammunition and a gun

cleaning kit. Finally, inside the barn, the agents found a gun

case, two gauges of shotgun shells, a gun scope that had "JPM27J"

written on it, and a 20-gauge shotgun barrel. Near the gun case,

the agents found two oil filters that had been modified.

Noticeably, both oil filters had a hole drilled into them and one

had a metal plate attached to one end. The agents suspected these

modified oil filters in Donovan's possession were homemade

silencers. The agents also recovered various weapons including

knives, swords, machetes, compound bows, and crossbows throughout

the property.

Five days after the search, Finnigan, who also lives on

the property, called ATF Special Agent James Martin and claimed

that the shotgun that was seized belonged to her. The ATF later

learned that the shotgun had been stolen from its owner, Kevin

Kwiatkowski.

- 3 - II. Procedural History

As Donovan had a prior felony conviction, the government

charged him with a single count of being a felon in possession of

a firearm in violation of

(g)(1).2 Prior to trial,

Donovan made a motion requesting that the court grant Finnigan

immunity for her testimony that the gun, which was stolen from its

legal owner, belonged to her. At a hearing on the motion, Donovan

argued that Finnigan's testimony was exculpatory but would expose

her to criminal liability and the prosecution's refusal to give

her immunity amounted to witness intimidation and prevented him

from mounting a defense. The district court disagreed, explaining

that it did not "see any evidence that the government attempted to

intimidate or harass a potential witness." And the court found

that the prosecution's refusal to give Finnigan immunity did not

constitute a due process violation because it did not prevent

Donovan from mounting a defense and calling other witnesses who

could testify about the ownership of the shotgun.

With regard to Finnigan's potential criminal liability,

the district court clarified that there was "evidence that

[Finnigan] ha[d] claimed the firearm as her own." The court then

2Under section 922 it is "unlawful for any person--who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[--]to . . . possess in or affecting commerce, any firearm or ammunition. . . ."

(g)(1).

- 4 - explained that the government and court identified "two potential

crimes" that Finnigan's testimony might unveil. First, that

Finnigan was possibly "culpab[le] . . . in connection with the

. . . theft of the firearm" and, alternatively, that she would be

criminally culpable for "providing a weapon to [Donovan,] a

convicted felon." The court noted that the appropriate question

was whether there was sufficient evidence that Finnigan would not

face "criminal exposure under [either] of the[se] theories."

During that hearing, the district court also heard

argument on Donovan's motions in limine. Donovan's counsel argued

that several pieces of evidence should be excluded under Federal

Rule of Evidence 404(b). First, the defense sought to exclude

evidence of a prior arrest where the police seized the same gun

scope that was recovered during the March 26, 2021 search. The

court allowed the prosecution to present this evidence but noted

that if Donovan wanted a limiting instruction, he "should draft it

in advance" and the court "would grant [the] limiting instruction."

The court clarified that it would be willing to give "a limiting

instruction" but the court "le[ft] it to the defense at the time

the evidence [was] offered to determine whether to request a

limiting instruction." Second, the defense sought to exclude

evidence regarding Donovan's possession of non-firearm weapons.

The district court deferred its ruling on this issue but noted

that, because the defendant was not charged with possession of

- 5 - these other weapons, the court would be willing to "give a limiting

instruction."

Before trial, Donovan filed proposed limiting

instructions for the gun cleaning kit, the bows, and a video of

him taking a routine drug test as part of his probation. The

government also filed a response with different proposed language

for the limiting instructions. Having stipulated to all other

elements of the offense, the parties proceeded to trial on a single

issue: whether Donovan possessed the shotgun.

During his testimony on October 13, 2021, Donovan's

probation officer Timothy Merna testified that Finnigan moved in

with Donovan in 2020 and Merna met Finnigan in January 2021. When

Finnigan was called to the stand, the next day, the district court

conducted the following colloquy:

THE COURT: So, Ms. Finnigan, I just want to ask you a few questions here.

Mr. Kennedy has been appointed to represent you. He's informed me that it is your intention to invoke your Fifth Amendment right to remain silent and not answer any questions about the subject matter that's involved in this case, that is, the charge against your boyfriend of possession of a firearm and ammunition by a convicted felon.

The defense has indicated that they would intend to call you and ask you questions about that, particularly focusing on issues like ownership and use of the firearm and the ammunition by you, by your boyfriend, and other information about that particular charge.

- 6 - And what I understand from talking to your lawyer is that if you were asked questions about that, your intention is to invoke your Fifth Amendment right and not to answer any questions about that subject matter. Is that right?

THE WITNESS: Correct.

THE COURT: Okay. So -- so that we're clear then, you intend to broadly invoke your Fifth Amendment privilege as to any subject matter involved in this case. Is that right?

THE WITNESS: Correct.

THE COURT: All right. Does counsel need to do anything further or is that sufficient?

THE DEFENDANT: That's fine.

MR. STACHOWSKE: Your Honor, the defense is satisfied.

On the second day of trial, the court noted that it was

preparing jury instructions using its "boilerplate instructions"

and had not "gotten any [instructions] from the parties that are

anything other than the usual set of instructions." At that time,

the government noted a proposed change to the instructions, but

the defense raised no concerns. The next day, the court gave the

parties an opportunity to review the draft jury instructions and

return "with any proposals to modify" or "supplement the

instructions." Following an off-the-record conference, the court

stated on the record that "[t]he government proposed some minor

changes to the instructions which [the court] agreed to make. [And

- 7 - defense counsel] made inquiries, which [the court] answered, about

the instructions and [the court] will make those changes and give

the instructions." The court then "advised the parties that[,] in

order to preserve any objection for purposes of appeal, they must

object at the appropriate time after [it] give[s] the instruction

before [it] send[s] the jury out to deliberate." Donovan did not

object to the jury instructions during or after the reading of the

instructions. The jury convicted Donovan.

In preparation for sentencing, United States Probation

and Pretrial Services ("Probation") prepared a Presentencing

Report ("PSR") that found that the oil filters in the barn were

homemade silencers because they had been modified from their

original design and could no longer function as automobile oil

filters. In a Report of Technical Examination, the ATF found, and

Probation later agreed, that the filters were "now designed to

function as [] firearm silencer[s] containing an expansion

chamber, a ported inner tube, and a filtering element that

functions as baffling material." Additionally, the ATF's analysis

of the filters uncovered that one contained debris, which it

explained was "indicative of fired ammunition." The ATF tested

one of the filters on a firearm, which was not the same make and

model as the gun found in Donovan's Jeep, and found that the filter

provided a decibel reduction of 4.02 decibels. Accordingly,

Probation calculated a base offense level of twenty-two and a

- 8 - two-level increase for possession of three firearms (the gun and

two silencers) pursuant to

(a)(3) and U.S.S.G.

§ 2K2.1(b)(1)(A) (we will explain these sections in more detail

later on). (Citing 18 U.S.C § 921(a)(3) and U.S.S.G.

§ 2K2.1(b)(1)(A)). Donovan objected to the two-level increase.

At the sentencing hearing, the defense called firearms

expert Ralph Demicco while the prosecution called two experts from

the ATF who tested the oil filters: Gregory Stimmel, a branch

chief within the firearms ammunition technology division, and

Cynthia Wallace, a forensic chemist. After hearing testimony from

the three witnesses, the court found that the oil filters were

sufficiently modified to qualify as silencers and sentenced

Donovan to 110 months in prison, with three years of supervised

release. Donovan filed this timely appeal.

III. Discussion

Donovan lodges three challenges on appeal. He argues

that the district court erred in (1) allowing Finnigan to invoke

the Fifth Amendment, (2) failing to give his requested limiting

instructions, and (3) finding that there was sufficient evidence

to show that the oil filters were homemade silencers for the

purposes of sentencing. We consider each of these challenges in

turn below and conclude that Donovan fails to establish a basis to

disturb either the conviction or the sentence.

- 9 - A. Fifth Amendment

Donovan first argues that the district court erred by

allowing Finnigan to invoke a blanket Fifth Amendment privilege

after Donovan subpoenaed her to testify that she owned the shotgun

that Donovan was charged with possessing. He argues the court

failed to "inquire about whether [] Finnigan was invoking her Fifth

Amendment right based on concerns that she would incriminate

herself both as to the possession of the firearm and knowledge

that it was stolen." The government contends that this argument

is forfeited, as the defense did not request additional questioning

when given the opportunity or otherwise object to the district

court’s colloquy. The government insists that the colloquy was

sufficient for Finnigan to invoke her Fifth Amendment privilege

and would hold up against plain-error review.

We generally review "favorable rulings on th[e]

invocation of the Fifth Amendment privilege for abuse of

discretion." United States v. Ramos,

(1st Cir.

2014). "We will reverse a district court's determination that a

witness properly invoked the privilege only when it is 'perfectly

clear . . . that the answers [sought from the witness] cannot

possibly incriminate [the witness].'" United States v.

Acevedo-Hernández,

(1st Cir. 2018) (first

alteration in original) (quoting United States v. De La Cruz, 996

- 10 - F.2d 1307, 1312 (1st Cir. 1993)). However, our standard of review

here is impacted by an issue of preservation.

The parties dispute whether Donovan properly preserved

his challenge to Finnigan's blanket assertion of her Fifth

Amendment privilege. At the conclusion of the district court's

questioning here, the district court asked if counsel needed

"anything further" to confirm whether the colloquy was

"sufficient." The defense stated that it was "satisfied" with the

court's questioning of Finnigan before she invoked her Fifth

Amendment right. The government argues this constitutes

forfeiture; but during oral argument, the panel questioned whether

counsel's statement rose to the level of outright waiver. See

United States v. Mayendía-Blanco,

(1st Cir. 2018)

(noting that waiver occurs when a party "intentionally

relinquishe[d] or abandon[ed]" a right) (quoting United States v.

Rodriguez,

(1st Cir. 2002)); United States v.

Chen,

(1st Cir. 2021) (concluding that the defendant

waived any challenge to verdict form because "[n]ot only did

[defendant] not object to it, . . . counsel [told the court] 'We're

fine with it'" when asked if the form was acceptable); United

States v. Cezaire,

(1st Cir. 2019) (concluding

that the argument "was at least forfeited" where defense counsel

did not object and said "okay" to the court's proposed course of

action).

- 11 - "[W]e need not decide between waiver and forfeiture

because '[w]here a defendant's claim would fail even if reviewed

for plain error, we have often' simply proceeded to the merits."

United States v. Grullon,

, 32 (1st Cir. 2021) (second

alteration in original) (quoting United States v. Brake,

(1st Cir. 2018)). We do so now. Plain-error review requires

Donovan to show that "(1) an error occurred (2) which was clear or

obvious . . . (3) affected [his] substantial rights [and]

(4) seriously impaired the fairness, integrity, or public

reputation of the judicial proceedings." Universitas Educ., LLC

v. Granderson,

(1st Cir. 2024) (second alteration

in original) (quoting Nat'l Fed'n of the Blind v. The Container

Store, Inc.,

(1st Cir. 2018)).3

Donovan argues that the district court erred by allowing

Finnigan to invoke a blanket Fifth Amendment privilege based on

the colloquy the district court performed. Specifically, he

challenges whether the district court adequately inquired into

whether Finnigan faced a sufficient possibility that she would

incriminate herself. To invoke her Fifth Amendment privilege, a

witness need only show that there is a "reasonable possibility"

3 We acknowledge that Donovan waived plain error review in failing to argue the four prongs of plain error in his opening brief; nonetheless, we address the merits of his argument. See Universitas Educ., LLC v. Granderson,

(1st Cir. 2024); United States v. Colón-De Jesús,

, 25 (1st Cir. 2023).

- 12 - that her testimony will expose her to potential prosecution.

United States v. Castro,

(1st Cir. 1997). The

potential for prosecution must be "substantial and 'real,' and not

merely trifling or imaginary." Marchetti v. United States,

(1968) (quoting Rogers v. United States,

(1951)).

"Assessing the danger that a witness faces 'is a

determination for the court, not the witness, to make, and [it] is

subject to the discretion of the district court.'" Ramos,

(quoting United States v. Pratt,

(1st

Cir. 1990)). In exercising this discretion, the judge must equally

focus on "personal perception of the peculiarities of the case"

and "the facts actually in evidence."

(quoting Hoffman v.

United States,

(1951). While blanket assertions

of privilege are "extremely disfavored," United States v.

Cascella,

(1st Cir. 2019) (citation omitted), we

have previously allowed blanket assertions "when the district

court itself confirmed the witness's inability to offer any

relevant, non-privileged testimony."

. A district court

can sufficiently inform itself on the nature and extent of the

Fifth Amendment claim in "various ways." Ramos,

.

"[I]t need only be evident from the implications of the question,

in the setting in which it is asked, that a responsive answer to

the question or an explanation of why it cannot be answered might

- 13 - be dangerous because injurious disclosure could result."

(quoting Hoffman,

).

Here, Donovan argues the district court erred in

allowing Finnigan's assertion because there was "no evidence that

either [Donovan] or Finnigan was involved in or knew of the theft

[of the firearm.]" While this is relevant to the question of

whether Finnigan's testimony would have exposed her to criminal

liability under

(j), which criminalizes the

possession of a stolen firearm, it has no effect on her possible

liability under

(d)(1).

Section 922(d)(1) makes it unlawful to knowingly furnish

a firearm to a person who has been previously convicted of a

felony. The record shows that even before the district court

conducted its colloquy, the court knew that Finnigan lived with

Donovan and had met Donovan's probation officer prior to the

execution of the March search warrant. And while Finnegan claimed

ownership of the shotgun, the shotgun was found attached to the

ceiling of Donovan's Jeep. See United States v. Sylvestre,

(1st Cir. 2023), cert. denied,

(2023)

(noting "evidence was sufficient to establish constructive

possession of a gun found in car that defendant had regular access

to").

The record before us does not demonstrate that the

district court made a "clear or obvious" error in finding that

- 14 - there was a reasonable possibility Finnigan's testimony would have

exposed her to criminal liability. Universitas Educ., LLC,

; see Acevedo-Hernández,

. Even if we

accept Donovan's contention that the record was insufficient to

support a finding that Finnigan's testimony would have

incriminated her with respect to the possession of a stolen firearm

under

(j), the record demonstrates that there was

a reasonable possibility that Finnigan's testimony would have

exposed Finnegan to potential prosecution for knowingly selling

"or otherwise dispos[ing] of" a firearm to a prohibited person

under

(d)(1). When the district court made its

decision, the record showed that: Finnigan was the purported owner

of the shotgun; Finnegan lived with Donovan and was his girlfriend;

Donovan had been previously convicted of a felony; Finnigan likely

knew of his conviction, given that she met his probation officer

while Donovan was serving a sentence of supervised release; and

Finnigan's shotgun was in Donovan's constructive possession

because it was in his car.

On this record, there is a reasonable possibility that

Finnigan's "responsive answer[s]" to questions about her ownership

and possession of the shotgun and her relationship with Donovan

would have resulted in an "injurious disclosure" and "'real' . . .

hazard[] of incrimination," which is all the district court had to

ascertain before sustaining the privilege. Ramos,

- 15 - (first quoting Hoffman,

; and then quoting

Marchetti,

). Donovan's arguments on appeal do not

establish that the record and colloquy by the district court were

insufficient to inform the court of Finnigan's potential criminal

liability. Thus, we observe no clear or obvious error in the

district court's proceedings and decision to permit Finnegan to

invoke her Fifth Amendment privilege.

B. Limiting Instructions

Donovan next argues that the district court erred in

permitting the admission, without limiting instructions, of what

he claims is prejudicial evidence of his past conduct and the other

weapons he had in his possession at the time of the search. In

pressing this claim, Donovan assigns error to the district court's

failure to give limiting instructions both at the time the

assertedly prejudicial evidence was admitted and while the

district court was instructing the jury after the close of

evidence. Although defense counsel sought limiting instructions

during the pretrial motion hearing and filed proposed limiting

instructions before trial, defense counsel did not object to the

court's lack of "contemporaneous limiting instructions" when the

evidence was admitted. Donovan concedes that his counsel "did not

re-raise [his] requests during trial or lodge additional

objections to the jury instructions after they were given." The

government argues that Donovan's challenge to the lack of limiting

- 16 - instructions is waived because of defense counsel's failure to

contemporaneously object or submit proposed instructions during

trial. Donovan nonetheless argues that his pretrial actions

preserved his arguments on this issue.

As to Donovan's arguments on the lack of contemporaneous

limiting instructions and the inadequacy of the jury instructions,

our review here is for plain error because he failed to lodge an

objection when the evidence was admitted. See United States v.

Williams,

(1st Cir. 2013) (explaining that "[w]hen

a defendant does not interpose a contemporaneous objection to a

limiting instruction," or the lack of an instruction, we review

the unpreserved objection for plain error); United States v.

Karani,

(1st Cir. 2021) (noting that we review

unpreserved challenges to "[jury] instructions for plain error").

However, our review of the record shows more than a mere lack of

preservation. Rather, Donovan outright waived any ability to

challenge the lack of limiting instructions.

True, Donovan made objections to certain evidence and

filed proposed limiting instructions prior to trial. But Donovan

did not re-assert his objections or request or provide limiting

instructions at any point during the trial, even though the

district court had explained before trial that it would "leave it

to the defense at the time the evidence is offered to determine

whether to request a limiting instruction" because such a request

- 17 - would be "a tactical choice that counsel needs to make." Thus,

despite initially raising the issue, Donovan "relinquish[ed] or

abandon[ed]" his request for limiting instructions when he failed

to raise timely, contemporaneous objections at the time that the

assertedly problematic evidence was introduced. United States v.

Padilla-Galarza,

(1st Cir. 2021) (quoting

Rodriguez,

). This means that Donovan's objection

to the lack of limiting instructions is waived and cannot be

resurrected now on appeal. United States v. Pelletier,

(1st Cir. 2011) (concluding that a challenge to a limiting

instruction was waived because "trial counsel was apprised of the

proposed language[ and] declined an opportunity to provide the

court with any changes, and again declined comment after the

instruction was read to the jury"). We therefore do not reach the

merits of this waived issue.

C. Sentencing Enhancement

Lastly, Donovan argues that the district court erred by

finding that the two oil filters were sufficiently modified to be

considered homemade silencers, triggering a compulsory sentencing

enhancement. We disagree. We review a sentencing judge's factual

findings for clear error and legal determinations de novo. United

States v. Ramos-Paulino,

(1st Cir. 2007). "A

question [of] whether the evidence is sufficient to support a

particular guideline determination is a question of law and,

- 18 - therefore, engenders de novo review." Id.; see also United States

v. Raiche,

(1st Cir. 2022), cert. denied,

(2023). The government must prove that a sentencing

enhancement applies to a defendant by a preponderance of the

evidence. United States v. Flete-Garcia,

(1st

Cir. 2019).

Section 2K2.1(b)(1)(A) of the United States Sentencing

Guidelines requires that a defendant receive a two-level increase

to their base offense level if there were three to seven firearms

involved in the offense. "When determining the number of firearms

involved in an offense, we consider all relevant conduct

attributable to the defendant." United States v. Ilarraza,

(1st Cir. 2020).

The term "firearm" includes "any firearm muffler or

firearm silencer."

(a)(3)(C). A "firearm muffler"

or "firearm silencer," in turn, is defined as "any device for

silencing, muffling, or diminishing the report of a portable

firearm."

§ 921(a)(25). But the statute then also defines a

"firearm muffler" or "firearm silencer" to include not only any

"device" that can be used as-is for "silencing, muffling, or

diminishing the report of a portable firearm" that is intended to

be so used. Id. The statute also defines a "firearm muffler" or

"firearm silencer" to include "any combination of parts, designed

or redesigned, and intended for use in assembling or fabricating

- 19 - a firearm silencer or firearm muffler" as well as "any part

intended only for use in such assembly or fabrication." Id.

(emphasis added).

Donovan argues that there is insufficient evidence in

the record to support the court's finding by a preponderance of

the evidence, see Flete-Garcia,

, that the oil

filters met the statutory definition of "firearm silencer" for the

purpose of applying the 2K2.1(b)(1)(A) sentencing enhancement.

Reviewing de novo, see Ramos-Paulino,

, we disagree.

The two oil filters at issue were found on Donovan's

property among ammunition, the second shotgun barrel, and other

gun accessories. The oil filters were similar but had a few

physical differences. The first ("Oil Filter One") was a Fram

PH8A model oil filter that was 6-1/4 inches long and 3-1/2 inches

in diameter. Oil Filter One "ha[d] been modified from its original

manufactured design by the creation of a centrally located hole

which perforate[d] the entire . . . device." Oil Filter One was

further modified by the attachment of a piece of metal to the rear

of the filter, which the ATF expert concluded was "an improvised

adapter" that "facilitate[d] attaching [Oil Filter One] to a

portable firearm." The second oil filter ("Oil Filter Two") was

a Fram PH7317 model oil filter that was 3-3/8 inches long and 2-3/4

inches in diameter. Like Oil Filter One, Oil Filter Two had been

modified "by the creation of a centrally located hole which

- 20 - perforate[d] the entire . . . device." However, unlike Oil Filter

One, Oil Filter Two did not have any "improvised adapter" attached

to it.

At Donovan's sentencing hearing, an ATF firearms expert

testified to having personally inspected hundreds of homemade

firearm silencers and noted that individuals commonly modify oil

filters for use as firearm silencers. See also United States v.

Hay,

(8th Cir. 2022) (recounting that the ATF

had seen an increase in the sale of "'Inline Fuel Filters' that

are easily modified to be used as silencers"). The expert

testified that the holes that had been drilled through the middle

of Oil Filters One and Two would serve "no real purpose" were

either filter to be used as an oil filter, thus providing "a major

indicator" that they were intended, as modified, for use in

creating a firearm silencer.

The same expert testified to having prepared a report

summarizing analysis that he and other ATF agents had done on Oil

Filters One and Two. To test Oil Filter One's potential for use

in silencing or muffling a firearm, the expert had used a threaded

adapter to attach it to the muzzle of a pistol. While the expert

had used an adapter that was "made in-house" by the ATF, he

testified that similar adapters are available for purchase at

commercial retailers. A comparison of shots fired by the pistol

with and without Oil Filter One attached revealed that Oil Filter

- 21 - One, as modified and attached with the adapter, caused a

4.02-decibel reduction in the sound of the pistol shots -- a

significant reduction on the logarithmic scale on which firearm

decibels are measured. Thus, the ATF report concluded that Oil

Filter One was "capable of diminishing the sound report of a

portable firearm" and therefore was "a firearm silencer or firearm

muffler as defined" by

(a)(25).

ATF agents did not test Oil Filter Two's potential for

use in silencing or muffling a firearm in the same way they had

tested Oil Filter One because "[t]he interior and exterior holes

[were] not lined up and testing [it] with live ammunition would

likely result in damage," and the agents wanted to preserve the

evidence. Nonetheless, based on the modifications that had been

made to Oil Filter Two -- which included the drilled hole and the

addition of "baffling material" inside the filter -- ATF agents

concluded that it was "no longer designed to function as an

automotive oil filter" and was "now designed to function as a

firearm silencer" as defined in § 921(a)(25).

A second ATF expert who testified at Donovan's

sentencing hearing explained that she had inspected Oil Filters

One and Two and found that the interior of Oil Filter One contained

residue of "suspected burned smokeless powder," lead particles,

antimony, and brass particles, which, taken together, the expert

- 22 - found indicative of ammunition having been fired into Oil Filter

One.

At oral argument, the parties discussed whether the oil

filters were identical. We recognize the importance of this

discussion because if even one of the oil filters at issue does

not qualify as a silencer, the sentencing enhancement cannot apply.

See U.S.S.G. § 2K2.1(b)(1)(A). We note that Oil Filters One and

Two are different models. And we acknowledge that while Oil Filter

One had a metal plate attached to it -- making it a "combination

of parts, designed or redesigned," which need only be "intended

for use in assembling or fabricating a firearm silencer or firearm

muffler" to meet the definition of a firearm silencer -- Oil Filter

Two did not, meaning that it, standing alone, must be a "part

intended only for use in such assembly or fabrication" to qualify

as a firearm silencer.

(a)(25) (emphasis added).

In contending that the evidence was insufficient to

support a finding that either oil filter was a "firearm silencer"

as defined by § 921(a)(25), Donovan presented the testimony of his

own firearms expert. The expert testified that the oil filters,

as modified, could "not easily" be used as silencers. He also

testified that someone had drilled holes into the barrel of the

shotgun that Donovan had been convicted of illegally

possessing -- a modification which, in his opinion, was likely

made to reduce recoil and would have resulted in the shotgun making

- 23 - a "very, very loud and obnoxious" noise when it was fired. The

defense argued that the presence of the holes in the shotgun

barrel, coupled with the fact that Donovan lives on a remote

property, indicated that he would not have been concerned with

reducing the sound of the shotgun.

But this evidence does not undermine the ATF agent's

testimony that there was "no real purpose" to adding holes to the

oil filters except to use them in fabricating firearm silencers.

And that testimony, when combined with the other evidence

indicating that the oil filters were intended to facilitate the

assembly or fabrication of a firearm silencer, suffices to support

the district court's determination that a preponderance of the

evidence showed each oil filter to be a "firearm silencer" within

the meaning of § 921(a)(25). We therefore reject Donovan's

contention that the district court erred in applying the sentencing

enhancement for Donovan's possession of three to seven firearms

under § 2K2.1(b)(1)(A).

IV. Conclusion

For all these reasons, we affirm.

- 24 -