United States v. Bishoff

58 F.4th 18

UNITED STATES of America, Appellee,

v.Terrick BISHOFF, Defendant, Appellant.

No. 21-1487

United States Court of Appeals, First Circuit.

January 19, 2023

Christine DeMaso for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

Before Kayatta, Thompson, and Gelpí, Circuit Judges.

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 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.

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 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) 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 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-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 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 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...