United States v. Ilarraza

United States Court of Appeals
For the First Circuit

No. 19-1395

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ILARRAZA,
a/k/a KAE-KAE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

June 15, 2020
 SELYA, Circuit Judge. It is apodictic that the guideline

sentencing range (GSR) is the starting point for fashioning a

sentence in a federal criminal case. See Gall v. United States,

552 U.S. 38, 49 (2007); United States v. Martin, 520 F.3d 87, 91

(1st Cir. 2008). But the GSR does not spring full-blown from the

sentencing judge's brow. Rather, it is the product of a series of

subsidiary determinations that the judge must make, many of which

affect either the defendant's total offense level (TOL) or his

criminal history category (CHC).

In this appeal, defendant-appellant José Ilarraza

assigns error to a number of such subsidiary determinations. He

says that these errors, singly and in combination, artificially

boosted his GSR and, thus, improperly inflated his sentence.

Concluding, as we do, that the appellant's asseverational array is

all meringue and no pie, we affirm the challenged sentence.

I. BACKGROUND

Because this sentencing appeal follows a guilty plea, we

gather the relevant facts from the change-of-plea colloquy, the

undisputed portions of the presentence investigation report (PSI

Report), and the transcript of the disposition hearing. See United

States v. Narváez-Soto, 773 F.3d 282, 284 (1st Cir. 2014). In the

fall of 2017, federal authorities learned from a cooperating

witness (CW-1), incarcerated in a Massachusetts prison, that the

appellant (a fellow inmate) had offered to help him purchase

- 2 -
firearms to ship to the Dominican Republic. According to the

information received, the appellant had told CW-1 to contact an

individual named Bryan Torres-Almanzar (Torres), who was selling

two firearms for $700 each and would be awaiting his call. The

authorities enlisted a second cooperator (CW-2) to set up a

controlled buy with Torres on CW-1's behalf.

In a series of recorded telephone conversations between

September 10 and September 13, the appellant and Torres discussed

their scheme to sell firearms to the two CWs. As relevant here,

the appellant told Torres that he wanted to sell "the shittiest

stuff" they had and that he had quoted CW-1 a price of around $700

or $800 per firearm. In the course of this conversation, the

appellant made clear that the trafficked firearms were "going

straight to the Dominican Republic." On another call, the

appellant admonished Torres to "scratch everything off" the

firearms that they were selling.

This planning came to fruition on September 13, when

Torres and an associate, Eric Valentín, rendezvoused with CW-2 and

sold him a semiautomatic handgun. Before the meeting, CW-2

deposited $700 into the appellant's canteen account as payment.

The handgun had an obliterated serial number (as did each of the

ten other firearms subsequently sold to CW-2).

That night, the appellant told Torres that CW-1 was

concerned that CW-2 had only received one firearm instead of two.

- 3 -
The next day, Torres assured the appellant that he was about to

sell CW-2 the second firearm. Within the hour, Torres and Valentín

met CW-2 and sold him another semiautomatic handgun.

In the weeks that followed, CW-2 purchased firearms to

CW-1's behoof from Torres and Valentín on four occasions. During

this interval, the authorities recorded other telephone calls in

which the appellant and Torres discussed some of the sales. On

September 15 — with the appellant present — CW-1 called Torres and

discussed the sale of three more firearms to CW-2. Four days

later, Torres and Valentín sold CW-2 three semiautomatic pistols.

In a later discussion about the possible sale of two

assault rifles, Torres expressed doubt that CW-2 could pay for

them. The appellant reassured him that payment would not be a

problem, explaining that the money was coming "from Santo Domingo."

Notwithstanding this discussion, the next firearm that CW-2 bought

(on September 28) was another pistol.

The appellant called Torres for the last time on October

2. In that conversation, Torres related that CW-2 wanted to

purchase three more guns. Two days later, Torres and Valentín

sold CW-2 three semiautomatic pistols. A final sale occurred on

October 19, at which time CW-2 purchased another semiautomatic

pistol and an assault rifle.

In due course, a federal grand jury sitting in the

District of Massachusetts charged the appellant with conspiring to

- 4 -
deal in firearms without a license and dealing in firearms without

a license (on a theory of aiding and abetting). See 18 U.S.C.

§§ 371, 922(a)(1)(A); see also id. § 2. The indictment charged

that the conspiracy continued until October 19, 2017 (the date of

the final arms sale to CW-2). After initially maintaining his

innocence, the appellant reversed his field and entered a straight

guilty plea to both counts of the indictment.

The probation office prepared the PSI Report, which

included a recommended calculation of the appellant's GSR. This

calculation began by fixing the appellant's base offense level

(BOL) at 12. See USSG §2K2.1(a)(7). From that plinth, the PSI

Report then recommended a quartet of four-level enhancements

because the offenses of conviction involved eleven firearms, see

USSG §2K2.1(b)(1)(B), which had obliterated serial numbers, see

USSG §2K2.1(b)(4)(B); the offenses involved trafficking in

firearms, see USSG §2K2.1(b)(5); and the appellant had been

complicit in transferring firearms with knowledge that they would

be sent out of the country, see USSG §2K2.1(b)(6)(A). The PSI

Report recommended a further two-level enhancement for the

appellant's role as an organizer of the conspiracy, see USSG

§3B1.1(c), and a three-level reduction for acceptance of

responsibility, see USSG §3E1.1. These calculations yielded a TOL

of 27.

- 5 -
 Turning to the other side of the sentencing grid, the

PSI Report chronicled a host of juvenile adjudications and one

adult conviction, all accruing during the four years preceding the

indictment. Pertinently, it assigned two criminal history points,

see USSG §4A1.2(d)(2)(A), to certain of the juvenile adjudications

based on the probation officer's review of records of the

Massachusetts Department of Youth Services (DYS), which indicated

that each such adjudication had resulted in the appellant spending

at least sixty days in custody. In all, the PSI Report computed

the appellant's criminal history score at 13 and placed him in CHC

VI.

Both the government and the appellant objected to

subsidiary guideline determinations in the PSI Report. The

government submitted that the appellant's BOL should be increased

by two levels because he was a "prohibited person" under USSG

§2K2.1(a)(6)(A) due to his Massachusetts conviction on October 17,

2017, for resisting arrest (two days before the end of the charged

conspiracy). For his part, the appellant raised a gallimaufry of

objections both to the offense-level enhancements and to his

criminal history score. In a revised PSI Report, the probation

officer sustained the government's objection, raised the

appellant's BOL to 14, and raised his TOL to 29. In all other

respects, the probation officer reaffirmed the earlier

recommendations.

- 6 -
 With these amended calculations in hand, the revised PSI

Report tentatively set the appellant's GSR at 151 to 188 months.

This spread, though, was trumped by the combined statutory maximum

for the counts of conviction — 120 months — which became the

appellant's GSR. See United States v. Breton, 740 F.3d 1, 22 (1st

Cir. 2014).

Before the district court, the appellant renewed his

earlier objections to the probation officer's subsidiary

determinations. The district court overruled all of these

objections and adopted the revised PSI Report's calculations.

After entertaining arguments of counsel and the appellant's

allocution, the court imposed a downwardly variant 50-month term

of immurement. This timely appeal ensued.

II. ANALYSIS

Appellate review of claims of sentencing error involves

a two-step pavane. See United States v. Flores-Machicote, 706

F.3d 16, 20 (1st Cir. 2013); Martin, 520 F.3d at 92. We first

examine any claims of procedural error. See Flores-Machicote, 706

F.3d at 20; Martin, 520 F.3d at 92. If the sentence clears these

procedural hurdles, we then consider any claim that questions its

substantive reasonableness. See Flores-Machicote, 706 F.3d at 20;

Martin, 520 F.3d at 92. Because the appellant advances only

assignments of procedural error, we do not address the substantive

reasonableness of his downwardly variant sentence.

- 7 -
 The starting point for sentencing is the calculation of

the GSR. See Gall, 552 U.S. at 49; Martin, 520 F.3d at 91.

Typically, a material miscalculation of the GSR constitutes "a

significant procedural error," which requires resentencing.

United States v. Alphas, 785 F.3d 775, 779 (1st Cir. 2015). This

rule of thumb holds true even when — as in this case — the

sentencing court has imposed a below-the-range sentence. See id.

at 779-80.

In this instance, the appellant tries to persuade us

that the district court committed several errors that inflated the

calculation of his GSR. Inasmuch as he raised these claims of

procedural error below, our review is for abuse of discretion.

See United States v. Soto-Soto, 855 F.3d 445, 448 (1st Cir. 2017).

We caution, however, that this standard of review is not

monolithic: under its aegis, we assay the district court's

findings of fact for clear error and its interpretation and

application of the sentencing guidelines de novo. See

Flores-Machicote, 706 F.3d at 20. In applying the abuse-of-

discretion standard here, we remain mindful that the government

bears the burden of demonstrating the appropriateness of

sentencing enhancements by a preponderance of the evidence. See

United States v. Cates, 897 F.3d 349, 354 (1st Cir. 2018).

- 8 -
 A.

We begin with the appellant's argument that the district

court erred in finding that he was a "prohibited person" at the

time of the offense. USSG §2K2.1(a)(6)(A). Since his argument

centers on the meaning and application of the operative guideline

provision, our review is de novo. See Flores-Machicote, 706 F.3d

at 20.

The applicable guideline provision assigns a default BOL

of 12 for most firearms offenses. See USSG §2K2.1(a)(7). But it

ratchets up the BOL by two levels "if the defendant . . . was a

prohibited person at the time the defendant committed the instant

offense." USSG §2K2.1(a)(6)(A). The Sentencing Commission's

commentary, in turn, identifies a "prohibited person" as "any

person described in 18 U.S.C. § 922(g) or § 922(n)." Id. cmt.

n.3. The former statute, among other things, refers to a person

"who has been convicted in any court of[] a crime punishable by

imprisonment for a term exceeding one year." 18 U.S.C.

§ 922(g)(1). Read together, these provisions trigger an enhanced

BOL (14) for a defendant with a prior conviction for a crime

punishable by more than one year in prison at the time he committed

a firearms offense.

The appellant does not contest that his predicate

conviction was for an offense that carries a maximum term of

imprisonment of more than one year. See Mass. Gen. Laws ch. 268,

- 9 -
§ 32B(d). Because the conspiracy to traffic firearms was ongoing

at the time of his predicate conviction — the appellant pleaded

guilty to an indictment that described the conspiracy as lasting

until October 19, 2017 — it appears as if his commission of the

conspiracy offense transpired while he was a prohibited person.

After all, the appellant's guilty plea constituted an admission

that he was a member of the conspiracy until October 19 — two days

after the occurrence of his predicate conviction. See United

States v. Jones, 778 F.3d 375, 386 (1st Cir. 2015); United States

v. Hernández, 541 F.3d 422, 425 n.1 (1st Cir. 2008); see also

United States v. Grant, 114 F.3d 323, 329 (1st Cir. 1997) ("When

a criminal defendant pleads guilty, he admits not only that he

committed the factual predicate underlying his conviction, but

also 'that he committed the crime charged against him.'" (quoting

United States v. Broce, 488 U.S. 563, 570 (1989))).

In an effort to sap the strength of this reasoning, the

appellant contends that he was not a prohibited person at the time

of the instant offense because his predicate conviction postdated

his active involvement in the charged conspiracy. This contention

elevates hope over reason. It is settled that once an individual

joins a conspiracy, his membership is presumed to continue through

the end of the conspiracy unless and until he affirmatively shows

that his membership was terminated at an earlier juncture either

by his expulsion or by his withdrawal. See, e.g., United States

- 10 -
v. Mangual-Santiago, 562 F.3d 411, 422-23 (1st Cir. 2009); United

States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002). Given the

continuing nature of a conspiracy offense, an individual "who has

joined a conspiracy continues to violate the law" throughout the

duration of his membership. Smith v. United States, 568 U.S. 106,

111 (2013). Seen in this light, we think it plain that section

2K2.1(a)(6)(A)'s reference to "the time the defendant committed

the instant offense" means the entire period of a defendant's

membership in a charged conspiracy, not merely the moments when he

undertakes actions to further the goals of the enterprise.

We add, moreover, that the appellant's focus on the

timing of his active involvement is at odds with the requirements

for withdrawal from a conspiracy. A conspirator who seeks to

withdraw from the enterprise must do more than merely cease active

participation or shun his coconspirators. See United States v.

Mehanna, 735 F.3d 32, 57 (1st Cir. 2013). Instead, he "'must act

affirmatively either to defeat or disavow the purposes of the

conspiracy,' such as by confessing to the authorities or informing

his coconspirators that he has forsaken the conspiracy and its

goals." Id. (quoting Piper, 298 F.3d at 53). Because a period of

inactivity on the part of a conspirator, without more, does not

constitute withdrawal from the conspiracy, it would defy logic to

exclude that period from the duration of his conspiracy offense

for the purpose of section 2K2.1(a)(6)(A).

- 11 -
 To cinch the matter, guideline provisions should be

construed in harmony with each other whenever the context permits.

See, e.g., United States v. López, 957 F.3d 302, 308-09 (1st Cir.

2020); Hernández, 541 F.3d at 424-25. The appellant's contention

offends this principle: it conflicts with our case law

interpreting an analogous guideline provision. USSG §4A1.1(d)

calls for the addition of two criminal history points "if the

defendant committed the instant offense while under any criminal

justice sentence." We have held that this provision applies to a

defendant convicted of a conspiracy offense if he was serving a

criminal justice sentence at any point during his membership in

the conspiracy, regardless of whether that sentence overlapped

with his participation in specific acts in furtherance of the

conspiracy. See United States v. González-Colón, 582 F.3d 124,

128 n.4 (1st Cir. 2009); Hernández, 541 F.3d at 424-25. We see no

reason to embrace a different understanding of when a defendant

commits a conspiracy offense in applying section 2K2.1(a)(6)(A).

To sum up, we hold that the phrase "the time the

defendant committed the instant offense" in section 2K2.1(a)(6)(A)

refers, in the context of a conspiracy offense, to the entirety of

a defendant's membership in the conspiracy. It follows that —

absent either withdrawal or expulsion from the conspiracy — this

provision demands a BOL of 14 for a defendant convicted of a

firearms conspiracy offense if he became a prohibited person at

- 12 -
any point before the conspiracy terminated. Because the appellant

became a prohibited person on October 17 — two days before the end

of the conspiracy — the district court did not err in elevating

his BOL by two levels under section 2K2.1(a)(6)(A).1

There is one loose end. The parties joust over whether

the October 19 arms sale was reasonably foreseeable to the

appellant and, thus, was relevant conduct under USSG

§1B1.3(a)(1)(B). This squabble need not detain us. The two-level

increase attaches here because the appellant was a member of the

charged conspiracy until October 19, not because the October 19

sale comprised relevant conduct. Cf. Hernández, 541 F.3d at 425

& n.1 (holding that determination of period of conspiracy offense

for purpose of section 4A1.1(d) did not require findings of

specific acts attributable to conspirator who admitted period of

conspiracy as part of guilty plea).

B.

The appellant goes on to challenge the district court's

finding that the offenses of conviction involved eleven firearms.2

1The government contends that even if the district court
erroneously increased the appellant's BOL by two levels, such an
error was harmless because the resulting GSR would still exceed
the combined statutory maximum for the counts of conviction.
Because we find no error in the court's application of section
2K2.1(a)(6)(A), we need not inspect this contention.
2 In this case, we need not determine whether the sale of all

eleven firearms fell within the scope of the appellant's relevant
conduct. The same four-level enhancement would apply as long as

- 13 -
See USSG §2K2.1(b)(1)(B). While he concedes that he helped

coordinate the sale of the first two firearms, he challenges the

finding that he was implicated in the subsequent sales (especially

those that occurred after his final conversation with Torres).

Because the challenged finding is a factual finding, our review is

for clear error. See United States v. Goodson, 920 F.3d 1209,

1211 (8th Cir. 2019).

We set the stage. When determining the number of

firearms involved in an offense, we consider all relevant conduct

attributable to the defendant. See United States v. Damon, 595

F.3d 395, 401 (1st Cir. 2010). For jointly undertaken criminal

activity, such as a conspiracy, a defendant's relevant conduct

includes all reasonably foreseeable acts and omissions of

coventurers within the scope of the conspiracy and undertaken in

furtherance of it. See USSG §1B1.3(a)(1)(B). Here, the

enhancement was warranted if the appellant's relevant conduct

encompassed the unlawful sale of at least eight firearms. See

supra note 2.

As said, the appellant does not challenge the district

court's finding that he was responsible for the sale of the first

two firearms. In addition, the record amply supports a finding

that the September 19 sale of three firearms by his confederates

the offenses of conviction involved at least eight firearms. See
USSG §2K2.1(b)(1)(B).

- 14 -
was reasonably foreseeable to him. After all, the appellant was

present when CW-1 discussed this sale with Torres, and he knew at

that time that CW-2 already had acquired some firearms.

Nor was this the last link in the foreseeability chain.

The record makes manifest that Torres told the appellant on October

2 that CW-2 wished to purchase three additional firearms. The

sale itself transpired two days later. Adding these three firearms

to those previously enumerated, we conclude that the district court

did not clearly err in finding that the offenses of conviction

involved at least eight firearms.

C.

We pivot now to the district court's application of the

exportation enhancement. See USSG §2K2.1(b)(6)(A). The

guidelines prescribe a four-level enhancement where the defendant

"possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be

transported out of the United States." Id.

The appellant admits that CW-1 stated that he wanted to

buy firearms to send to the Dominican Republic. He protests,

though, that there was no evidence that he either believed or

should have believed this statement. The district court rejected

this plaint and determined that the appellant's case fit within

the contours of the exportation enhancement. Because this

determination draws its essence from a factual finding concerning

- 15 -
the appellant's state of mind, our review is for clear error. See

United States v. Torres-Velazquez, 480 F.3d 100, 103 (1st Cir.

2007) (reviewing for clear error finding that defendant knew

laundered funds were related to drug trade).

Closely read, the record belies the appellant's

protestations. When discussing the first sale, the appellant told

Torres that CW-1 wanted to purchase firearms to send to the

Dominican Republic. Moreover, during a later call on September

23, the appellant told Torres that he should not worry about

payment for assault rifles because CW-1 was getting money from

Santo Domingo (the capital of the Dominican Republic). Words may

inform deeds, and the appellant offers no explanation as to why he

would falsely relate to a confederate that CW-1 was shipping

firearms to, and receiving money from, the Dominican Republic.

Statements between coconspirators, made during and in furtherance

of the conspiracy, are often deemed sufficiently reliable to

warrant consideration by the factfinder, see Mehanna, 735 F.3d at

44 (describing defendant's statements to coconspirators during

course of conspiracy as "highly probative" of his intent), and the

sentencing court reasonably could have inferred from the

appellant's statements to Torres that he believed the firearms

were destined for foreign shores.

The appellant has a fallback position. He suggests that

the exportation enhancement is inapplicable in this case for two

- 16 -
additional reasons: because the trafficked firearms did not end

up in the Dominican Republic and because his role in the conspiracy

was too far removed from the planned exportation of the weapons.

We think not.

We need not tarry. Nothing in the language of the

relevant guideline provision, USSG §2K2.1(b)(6)(A), mandates that,

as a condition precedent to the enhancement, the trafficked

firearms actually must cross an international border. Nor does

the guideline require, as a condition precedent to the enhancement,

that a defendant must have played a direct, hands-on role in

exporting trafficked firearms. In short, neither of the

appellant's proffered reasons for setting aside the sentencing

court's state-of-mind finding throws shade on that finding.

D.

Battling on, the appellant contests the four-level

enhancement for engaging in firearms trafficking. See USSG

§2K2.1(b)(5). He posits that the trafficking enhancement applies

only to a defendant with actual knowledge that the recipient of

the transferred firearms may not lawfully possess them. Building

on this porous foundation, he claims that CW-2 was virtually a

stranger and, therefore, he (the appellant) lacked the requisite

knowledge.

This claim is easily toppled. The guideline commentary

provides a two-part definition of trafficking. See id. cmt.

- 17 -
n.13(A). For one thing, the defendant — as relevant here — must

have "transported, transferred, or otherwise disposed of two or

more firearms to another individual." Id. cmt. n.13(A)(i). For

another thing, 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).

The appellant does not dispute that his conduct

satisfied the first of these elements. Consequently, the lens of

our inquiry focuses on the second element. To satisfy that

element, the government was required to show that the appellant

knew (or had reason to believe) that CW-2 could not lawfully

possess the firearms or that he intended to use or dispose of them

unlawfully.

In addressing this guideline provision, the appellant

mounts a thaumaturgical exercise in sleight of hand. Before us,

he emphasizes that he did not know that CW-2 was prohibited from

possessing firearms. But this is the reddest of red herrings:

the second element of the trafficking definition contains two

disjunctive prongs, and it is the unlawful use or disposition prong

under which the government urged the enhancement.

- 18 -
 It is true that the sentencing court did not make a

specific finding when it overruled the appellant's objection to

this enhancement. But when the basis for a sentencing court's

finding is sufficiently clear from context, the absence of an

explicit explanation for the finding is of no consequence. See

United States v. Carbajal-Váldez, 874 F.3d 778, 783 (1st Cir. 2017)

(explaining that reviewing court may uphold enhancement despite

absence of explicit subsidiary findings when "the sentencing

record, taken as a whole, reliably shows that the relevant factual

questions were 'implicitly resolved' by the sentencing court"

(quoting United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) (per

curiam))). That is the case here: we think it pellucid that the

sentencing court adopted the government's view that the appellant

had abundant reason to believe that CW-2 intended to dispose of

the firearms unlawfully. We review this factual finding for clear

error, see United States v. Juarez, 626 F.3d 246, 251-52 (5th Cir.

2010), and we discern none. We explain briefly.

To satisfy the unlawful use or disposition prong, the

government does not need to prove that the defendant knew "of any

specific felonious plans on the part" of the recipient of the

firearms. See United States v. Marceau, 554 F.3d 24, 32 (1st Cir.

2009). Nor must the government prove the defendant's knowledge of

the recipient's intent by direct evidence. See id. Put simply,

a sentencing court may rely on circumstantial evidence and the

- 19 -
plausible inferences therefrom to find that a defendant knew or

had reason to believe that the recipient planned to use or dispose

of the firearms in an unlawful manner. See United States v.

Taylor, 845 F.3d 458, 460-61 (1st Cir. 2017); Marceau, 554 F.3d at

32.

Let us be perfectly clear. The bare 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. See United States v. Moody, 915 F.3d 425, 430 (7th Cir.

2019). Here, however, the evidence of the appellant's knowledge

of the CWs' criminal plans extended well beyond the unlawfulness

of the purchase. As we already have explained, the district court

supportably found that the appellant believed that the CWs intended

to send the firearms to the Dominican Republic — and the appellant

had no basis for thinking that either CW had a license to export

firearms. Cf. Taylor, 845 F.3d at 461 (finding no plain error in

application of trafficking enhancement when defendant transferred

sawed-off shotgun to individual who planned to resell it and "there

was no indication that [the individual] would be the unusual

firearms dealer who could legally own, much less legally resell,

a sawed-off shotgun").

To make the cheese more binding, the appellant was aware

that the CWs had expressed interest in purchasing a slew of

- 20 -
handguns and at least two assault rifles over the course of only

a few weeks. The number and type of firearms that the CWs sought

to buy over a short period of time provided further reason for the

district court to doubt the appellant's claim that he did not

believe that the purchasers intended to use or dispose of the

firearms in connection with some nefarious activity. See id.;

Juarez, 626 F.3d at 252.

Last — but surely not least — the district court

reasonably could have concluded that the appellant took pains to

remind Torres to scratch the serial numbers off the firearms before

transferring them to CW-2. This reminder provides powerful (albeit

circumstantial) evidence that the appellant believed that the CWs

had felonious plans for the firearms because the obliteration of

a serial number is almost always "done in anticipation that the

gun will be used in criminal activity." Marceau, 554 F.3d at 32

(quoting United States v. Ortiz, 64 F.3d 18, 22 (1st Cir. 1995)).

Especially given so telling a harbinger, the district court was

entitled to disregard the appellant's self-serving claim of

ignorance.

That ends this aspect of the matter. The appellant was

aware that the CWs wanted to purchase a significant number of

firearms, including assault rifles, with the stated intent of

exporting them to the Dominican Republic. Prior to the first of

the transactions, he instructed his coconspirator to remove the

- 21 -
serial numbers from the trafficked firearms. No more was needed

to inoculate the district court's finding that the appellant knew

or had reason to believe that CW-2 intended to dispose of the

firearms unlawfully against clear error review.

E.

Next, the appellant takes aim at the district court's

application of a two-level role-in-the-offense enhancement. By

its terms, the relevant guideline provision applies when "the

defendant was an organizer, leader, manager, or supervisor in any

criminal activity" involving up to four participants.3 USSG

§3B1.1(c); see United States v. Al-Rikabi, 606 F.3d 11, 14 (1st

Cir. 2010). The appellant argues that he was not an organizer

but, rather, acted only as a "matchmaker" and a "cheerleader."

We begin with the basics. Section 3B1.1(c)'s two-level

enhancement is warranted if the government satisfies two elements.

See Al-Rikabi, 606 F.3d at 14. First, the record must show that

"the criminal activity involved at least two, but fewer than five,

complicit individuals (the defendant included)." Id. Second, the

record must show that, "in committing the offense, the defendant

exercised control over, managed, organized, or superintended the

activities of at least one other participant." Id. We review a

3 A more onerous enhancement may apply to a defendant who is
shown to be an organizer, leader, manager, or supervisor of a
criminal activity that comprised five or more participants or was
otherwise extensive. See USSG §3B1.1(a)-(b).

- 22 -
district court's fact-bound determination of a defendant's role in

the offense for clear error. See United States v. Alicea, 205

F.3d 480, 485 (1st Cir. 2000).

In the case at hand, it is clear that the criminal

activity (the arms trafficking enterprise) involved three

complicit participants: the appellant, Torres, and Valentín.4 The

issue, then, is whether the record supports the district court's

determination that the appellant acted as an organizer. A

defendant acts as an organizer "if he coordinates others so as to

facilitate the commission of criminal activity." United States v.

Bedini, 861 F.3d 10, 21 (1st Cir. 2017) (quoting United States v.

Tejada-Beltran, 50 F.3d 105, 112 (1st Cir. 1995)). We have

recognized several indicia that the defendant plays an

organizational role, including substantial participation in the

planning of the offense, the recruitment of accomplices, and the

exercise of decisionmaking authority. See, e.g., id.; United

States v. Arbour, 559 F.3d 50, 55 (1st Cir. 2009); see also USSG

§3B1.1, cmt. n.4.

What is more, a defendant need not exercise complete

hegemony over the entire criminal enterprise in order to qualify

4 There is some suggestion in the revised PSI Report that the
enterprise also may have included "soldiers" who worked for Torres
and Valentín. But this point is largely undeveloped, and neither
party has argued that we should regard the criminal activity as
having more than three participants.

- 23 -
as an organizer. See United States v. Ventura, 353 F.3d 84, 90

(1st Cir. 2003); cf. USSG §3B1.1, cmt. n.4 ("There can, of course,

be more than one person who qualifies as a leader or organizer of

a criminal association or conspiracy."). Indeed, a defendant's

direction of the activities of one other participant in connection

with one criminal transaction is enough to bestow "organizer"

status upon him. See United States v. García-Morales, 382 F.3d

12, 19-20 (1st Cir. 2004); United States v. Cruz, 120 F.3d 1, 4

(1st Cir. 1997) (en banc).

Against this backdrop, the district court (adopting a

recommendation contained in the revised PSI Report) found the

appellant to be an organizer within the purview of the guideline.

Where, as here, the sentencing court has not made particularized

findings as to the identity of the persons organized, the court of

appeals may mine the record in order to identify those persons.

See United States v. Zayas, 568 F.3d 43, 47 (1st Cir. 2009) (per

curiam); United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st

Cir. 2007). In this case, that excavation reveals ample evidence

to support a conclusion that the appellant organized the activities

of Torres with respect to the initial arms sales to CW-2.5

5 To recapitulate, the appellant identified CW-1 as a
prospective buyer and offered up Torres as a willing seller. He
then helped arrange the sale of the first two firearms through
telephone conversations with Torres, during which conversations he
discussed what firearms to sell and how much to charge.
Importantly, the appellant gave Torres what reasonably could be

- 24 -
 To be sure, the appellant identifies some facts that

could be construed to indicate that Torres was running the show.

For example, Torres procured the firearms that were trafficked;

only he — not the appellant — had contact with Valentín and CW-2;

and he and/or Valentín apparently retained the proceeds from all

but the first arms sale. These facts, however, may instead reflect

the appellant's incarceration during the period when the criminal

enterprise was in motion. At bottom, then, a reasonable factfinder

could have viewed the appellant's role in one of two different

ways — either as an organizer of Torres's activities or simply as

a facilitator. This duality lights our path: "where there is

more than one plausible view of the circumstances, the sentencing

court's choice among supportable alternatives cannot be clearly

erroneous." United States v. Dunston, 851 F.3d 91, 101-02 (1st

Cir. 2017) (quoting United States v. Ruiz, 905 F.2d 499, 508 (1st

Cir. 1990)). So it is here.

To say more would be to trespass on the reader's

indulgence. Since the record plainly shows that there were at

least two culpable participants in the criminal activity (the

appellant and Torres) and since the district court had a reasonable

basis for inferring that the former organized the activities of

construed as directions concerning salient details of the sale.
Nothing makes this fact more evident than the appellant's
admission, when entering his guilty plea, that he told Torres "how
much money to charge" for the firearms.

- 25 -
the latter, we detect no clear error in the district court's

application of the two-level enhancement. The district court

plausibly could view the sale of the first two firearms as the

consummation of the appellant's idea to sell firearms to CW-1 and

his recruitment and coordination of Torres in order to execute his

plan.

F.

This brings us to the appellant's final sortie: his

attack on the district court's computation of his criminal history

score. To begin, the sentencing guidelines assign two criminal

history points to a "juvenile sentence to confinement of at least

sixty days if the defendant was released from such confinement

within five years of his commencement of the instant offense."

USSG §4A1.2(d)(2)(A). Any other "juvenile sentence imposed within

five years of the defendant's commencement of the instant offense"

receives one criminal history point. USSG §4A1.2(d)(2)(B).

In the case at hand, the PSI Report initially recommended

that certain of the appellant's juvenile adjudications receive two

criminal history points because his DYS records showed that each

of them resulted in at least sixty custodial days.6 The appellant

objected to this recommendation, but the probation officer

6
The probation officer concluded that, in each instance, the
appellant was released from custody within five years of the
commencement of the charged conspiracy. The appellant has not
challenged this conclusion.

- 26 -
rejected the appellant's importunings and reaffirmed the

recommendation in a revised PSI Report. Before the district court,

the appellant again objected. The district court overruled this

renewed objection and followed the revised PSI Report's lead.

The appellant argues that each of the disputed

adjudications should have carried only one criminal history point.

He says that his DYS records "are not clear as to the amount of

time in juvenile custody" and that "[t]here is no . . . proof of

which case or cases received sentence [sic] of more than sixty

days." He also says that "[h]e was placed in the legal custody of

[DYS], which does not necessarily mean physical custody or

detention."

This line of argument is fatally underdeveloped. As a

threshold matter, it is unclear whether the appellant means to

assert that his DYS records fail to show a separate sentence of at

least sixty days of confinement for each juvenile adjudication,

means to assert that he was sentenced to a form of DYS custody

that does not qualify as "confinement" under section

4A1.2(d)(2)(A), or means to advance a grab-bag theory based on

some combination of these two arguments. And although his attack

seems to involve a disagreement with the probation officer's

reading of his DYS history, the documents underlying that history

are not part of the record on appeal (and for that matter, do not

seem to have been made part of the record below). Consequently,

- 27 -
there is no meaningful way in which we can assess the appellant's

assertion that the probation officer misinterpreted the time he

spent in custody.

The problem goes from bad to worse. The appellant's

attack takes aim at the scoring of four separate juvenile

adjudications, but he fails even to mention — let alone provide

any details about — any particular adjudication. And to the extent

that the appellant is endeavoring to argue that any or all of his

juvenile sentences resulted in a form of DYS custody that should

not qualify as "confinement," he does not point to even a scintilla

of supporting evidence. Nor does he identify any authority

defining these terms. On this meager record, we are simply unable

to determine what force, if any, the appellant's attack might have.

We have emphasized before — and today reiterate — that

parties must bear responsibility for developing their arguments on

appeal. See, e.g., United States v. Pinkham, 896 F.3d 133, 141

(1st Cir. 2018); United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). To carry this modest burden, a party must do more

than merely "mention a possible argument in the most skeletal way,

leaving the court to do counsel's work, create the ossature for

the argument, and put flesh on its bones." Zannino, 895 F.2d at

17. In this instance, the appellant has shirked this

responsibility: he has failed either to articulate his theory

about the scoring of his juvenile adjudications with so much as a

- 28 -
rudimentary degree of clarity or to amplify the factual and legal

basis for any other arguments on this issue that he purposes to

make. In light of these deficiencies, his claim that the district

court erred in calculating his criminal history score amounts to

little more than the frenzied brandishing of a cardboard sword.

We therefore treat this claim as waived. See id. ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the challenged sentence is

Affirmed.

- 29 -