United States Court of Appeals For the First Circuit
No. 25-1157
UNITED STATES,
Appellee,
v.
AIZAVIER ROACHE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Aframe, Howard, and Dunlap, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee.
March 30, 2026 DUNLAP, Circuit Judge. Defendant-Appellant Aizavier
Roache ("Roache") appeals from the district court's judgment
imposing a sentence of fifty-seven months of imprisonment,
followed by three years of supervised release, for conspiring to
traffic firearms in violation of 18 U.S.C. § 933(a)(1), (3).
Roache argues that the district court erred procedurally by
applying a six-point enhancement to his offense level computation
under the United States Sentencing Guidelines (the "guidelines" or
"U.S.S.G.") based on prior statements of Roache's co-conspirator,
Travon Brunson ("Brunson"), to agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives ("ATF"). Because the district
court did not abuse its discretion in its reliability
determination, we affirm.
I.
In January 2021, ATF agents traced a pistol that had
been used in a crime in Massachusetts and recovered by
Massachusetts state police to Brunson, a South Carolina resident
who had purchased the pistol from a gun shop in South Carolina
eight months earlier.1 A few months later, in June 2021, ATF
Because this appeal stems from a sentence following a guilty 1
plea with no plea agreement, we set out the facts as gleaned from the unchallenged portions of the Presentence Investigation Report ("PSR"), the sentencing record, and the sentencing hearing transcript. See United States v. Guía-Sendeme, 134 F.4th 611, 614 (1st Cir. 2025); United States v. Melendez-Hiraldo, 82 F.4th 48, 51 n.1 (1st Cir. 2023); United States v. Coplin-Benjamin, 79 F.4th 36, 38–39 (1st Cir. 2023).
- 2 - agents traced another pistol used in a crime in Boston,
Massachusetts, and subsequently recovered by Boston police to
Brunson, who had bought the pistol from another gun shop in South
Carolina about a month earlier.
On August 5, 2021, ATF agents assigned in South Carolina
conducted a consensual interview with Brunson "regarding his
suspected involvement in firearms trafficking from South Carolina
to Massachusetts." Brunson told the agents that he had bought
twenty-four firearms for someone he knew as "Boston," and he
identified Roache as "Boston" when he was shown Roache's photo.
In the interview, Brunson explained how the firearms transactions
typically occurred. First, Roache would text Brunson pictures of
firearms he wanted. Second, Roache would meet with Brunson and
give him cash to purchase the firearms. Third, Brunson would buy
the firearms Roache wanted and meet again with Roache at different
locations to give him the firearms. Brunson also told the agents
that he did not buy firearms for anyone other than Roache, and
that Roache was a resident of South Carolina. Brunson stated that
he did not know why Roache used him to purchase firearms instead
of purchasing them for himself, but he assumed that Roache was a
felon.
Later in August, an ATF agent followed up with Brunson
in a telephone interview. Brunson told the agent that he had
deleted the text messages about firearms deals between him and
- 3 - Roache. He also claimed that he did not make any money from buying
firearms for Roache and that he had stopped buying Roache firearms
when he learned that Roache was making a profit. Brunson admitted
that, when he would buy firearms for Roache, he would indicate on
the required ATF Form 4473 that he, Brunson, was the actual
purchaser. The agent ended the interview by telling Brunson that
it was a federal crime to buy a firearm for someone else, and that
it was illegal for Roache to possess a firearm as he was a felon
who had exhibited violence at points in his past.
Over the next twenty-two months, ATF agents traced six
more pistols that had been used in crimes and recovered by police
in Massachusetts to purchases Brunson had made in South Carolina
in 2020 and 2021. Then, starting in July 2023, the ATF began to
trace pistols recovered from Massachusetts crimes to purchases
made by Brunson in South Carolina in early 2023.
Suspecting that Brunson was involved in straw purchasing
and firearms trafficking once again, ATF agents conducted further
investigations. The agents reviewed relevant South Carolina gun
shop records; pursuant to a search warrant, they searched Roache's
phone that had been seized incident to an unrelated arrest in
Boston; and pursuant to grand jury subpoenas, they reviewed text
messages and Cash App transfers between Roache and Brunson, as
well as other bank and travel records for both men.
- 4 - Not only did the agents discover from these records that
Brunson had purchased at least forty-six firearms in South Carolina
since May 2020, but they also learned that he had purchased a total
of six firearms for Roache on three occasions in early 2023. The
first two of these deals involved, first, text messages and phone
calls between the men discussing which guns to purchase and prices;
second, Cash App money transfers from Roache in Boston to Brunson
in South Carolina; and third, Brunson's purchase of pistols.
Roache traveled by airplane to South Carolina after the second
purchase, retrieved the firearms from Brunson, and returned to
Boston via bus. Roache was in South Carolina for the third of
these deals. On that occasion, after Roache texted Brunson his
PIN, Brunson purchased four firearms using Roache's card. Three
of those four firearms were later recovered in Boston from
individuals who could not lawfully possess firearms.
Following this investigation, Roache and Brunson were
indicted for, and subsequently pled guilty to, conspiring to
traffic six firearms from around January 2023 to August 2023 in
violation of 18 U.S.C. § 933(a)(1), (3).
The PSR for Roache added a six-level enhancement to his
offense level computation based on the six firearms that Roache
purchased through Brunson in 2023 and the twenty-four firearms
that Brunson -- in his 2021 interviews with the ATF
- 5 - agents -- stated he had previously purchased for Roache.2 The PSR
concluded that this six-level enhancement brought Roache's total
offense level to twenty-one and, when combined with his criminal
history category of IV, recommended a guideline range of
fifty-seven to seventy-one months of imprisonment.
Roache objected to the PSR on the basis that Brunson's
"uncorroborated statement" was insufficient evidence to support
that he was involved in trafficking more than the six charged
firearms. Roache argued that he should have received only a
two-level enhancement under the guidelines and thus his total
offense level should have been seventeen, resulting in a guideline
range of thirty-seven to forty-six months of imprisonment.
At sentencing, Roache again argued that a six-level
enhancement based on Brunson's 2021 statement that he had purchased
twenty-four firearms for Roache was unsupported because Brunson's
statement lacked corroboration. He also argued that Brunson's
statement was unreliable because Brunson committed more crimes
after the 2021 interviews and had purchased more firearms than he
had admitted in the interviews, and because it was improbable that
Brunson only sold firearms to Roache and not to other people. In
2 Under the guidelines, an offense involving three to seven firearms requires a two-level enhancement, an offense involving eight to twenty-four firearms requires a four-level enhancement, and an offense involving twenty-five to ninety-nine firearms requires a six-level enhancement. See U.S.S.G. § 2K2.1(b)(1).
- 6 - response, the government argued that "because the guns were coming
up here to Massachusetts to be used," New England ATF agents went
to South Carolina to interview Brunson. Further, the government
pointed out that it had recovered firearms from South Carolina in
Massachusetts and suggested that the ATF agents had a photo of
Roache ready to show Brunson because they already suspected he was
the recipient of the firearms in Massachusetts.3
Noting that it was a "somewhat close" question whether
there were sufficient indicia of reliability to support Brunson's
2021 interview statement, the district court nonetheless overruled
Roache's objection and applied the six-level enhancement. The
court noted that, because Roache's phone history did not go back
to 2020, the court would not infer that the government's failure
to produce inculpatory evidence of the earlier transactions
undermined Brunson's reliability. The court reasoned that
Brunson's statement was supported by sufficient indicia of
reliability because some of the firearms Brunson purchased in South
Carolina were ending up in Boston; Brunson had identified Roache
as the actual buyer when shown Roache's picture; and the way
Brunson had described the deals occurring in 2021 was similar to
3During the parties' colloquy with the court, the court noted that the ATF would have had a reason to fly to South Carolina and stated that it presumed the agents "already had a photo of Mr. Roache with them when they showed up to interview Mr. Brunson."
- 7 - how the deals happened in 2023. In the court's view, these
indicators of reliability were sufficient under a preponderance of
the evidence standard. The court, however, expressly declined to
credit Brunson's statements that he only purchased firearms for
Roache and that he did not make any profit from the deals; it also
noted that Brunson's criminal activities after the interviews were
cause for concern.
Under the enhancement, the court sentenced Roache to the
low end of the guideline range: fifty-seven months of imprisonment
followed by three years of supervised release. Roache now appeals
from the district court's application of the six-level enhancement
on the basis that Brunson's 2021 statements supporting the
enhancement were not corroborated by adequate indicia of
reliability, and that, therefore, the additional gun sales had not
been proven by a preponderance of the evidence.
II.
A. Standard of Review
We review a federal criminal sentence with "a frank
recognition of the substantial discretion vested in a sentencing
court." United States v. Rondón-García, 886 F.3d 14, 20 (1st Cir.
2018) (quoting United States v. Flores-Machicote, 706 F.3d 16, 20
(1st Cir. 2013)). Roache is making a preserved challenge to the
procedural reasonableness of his sentence in arguing that the
district court improperly calculated his guideline range. See id.
- 8 - We review such a challenge within the deferential
abuse-of-discretion framework. United States v. Acevedo-Osorio,
118 F.4th 117, 134 (1st Cir. 2024); United States v.
Vargas-Martinez, 15 F.4th 91, 98 (1st Cir. 2021).
In our review, we are required "not only to 'accept' a
district court's 'findings of fact' (unless 'clearly erroneous'),
but also to 'give due deference to the district court's application
of the guidelines to the facts.'" Buford v. United States, 532
U.S. 59, 63 (2001) (quoting 18 U.S.C. § 3742(e)); United States v.
Andino-Morales, 73 F.4th 24, 43 (1st Cir. 2023).4 "At sentencing,
the district court has discretion to consider any evidence with
sufficient indicia of reliability, and can rely upon virtually any
dependable information." United States v. Carvajal, 85 F.4th 602,
612 (1st Cir. 2023) (internal quotations omitted).
We also "review the district court's reliability
determination for abuse of discretion." United States v.
Franklin, 51 F.4th 391, 396 (1st Cir. 2022); see United States v.
4We recognize that our circuit precedent has at times been inconsistent in the framing of this standard. See United States v. Goncalves, 123 F.4th 580, 586 & n.8 (1st Cir. 2024); id. at 589–91 (Howard, J., dissenting). In this case, however, we conclude that the primary question before us is a factual one -- relating to the reliability of the statements made by Roache's co-conspirator -- and that the propriety of the district court's application of the guidelines flows ineluctably from that determination. Accordingly, we need not further refine this standard here.
- 9 - Castillo-Torres, 8 F.4th 68, 71 (1st Cir. 2021). "Under that
standard, we examine the district court's legal conclusions de
novo, its findings of fact for clear error, and its judgment calls
with considerable deference." Franklin, 51 F.4th at 396.
B. Reliability of Brunson's Out-of-Court Statements
The gravamen of Roache's argument is that the district
court improperly credited unsworn statements by Brunson regarding
the duo's prior uncharged gun dealings. A district court has
broad discretion to consider information about the defendant and
his conduct in reaching an appropriate sentence, United States v.
Rosa-Borges, 101 F.4th 66, 76 (1st Cir. 2024), and is not limited
by the Federal Rules of Evidence or the Sixth Amendment’s
confrontation clause when doing so, Rondón-García, 886 F.3d at 21.
Further, in sentencing a defendant, a district court "may consider
both charged and uncharged conduct of the defendant," though it
may do so "only if proven by a preponderance of the evidence."
Id. And, to accord due process, "a convicted defendant has the
right to be sentenced on the basis of accurate and reliable
information." Rosa-Borges, 101 F.4th at 76 (quoting United States
v. Ramos-Carreras, 59 F.4th 1, 5 (1st Cir. 2023)). "Thus, imposing
a sentence based on factual findings that are, in turn, 'based
solely on unreliable evidence' constitutes reversible error." Id.
at 76–77 (quoting Castillo-Torres, 8 F.4th at 71).
- 10 - The question in this case, then, is whether the ATF
agents' summary of Brunson's 2021 statements about
Roache -- double hearsay concerning conduct for which Roache was
never charged -- is reliable because it is supported by sufficient
indicia of trustworthiness.5 See id. at 77; Rondón-García, 886
F.3d at 21. This is a fact-intensive determination. See United
States v. Colón-Maldonado, 953 F.3d 1, 11 (1st Cir. 2020); United
States v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir. 2009). The
district court noted several indicia that convinced it that
Brunson's 2021 statements about Roache's firearm purchases were
reliable. These factors included the corroborative evidence of
firearms purchased by Brunson in 2020 and 2021 being recovered in
Massachusetts by law enforcement; the detailed nature of Brunson's
statements, including his identification of Roache as the actual
buyer when shown Roache's photo; and the corroborative evidence
indicating that Roache was actually purchasing firearms through
Brunson in early 2023 in a similar manner to how Brunson described
the deals in 2020 and 2021. We conclude that the district court
did not abuse its discretion in finding that Brunson's 2021
5 While the ATF agent's summary of Brunson's 2021 statement is double hearsay, Roache has not challenged the second leg of the hearsay, namely, the accuracy of the ATF agent's summary of Brunson's statement.
- 11 - statements were reliable, and thus satisfied the preponderance of
the evidence standard.
First, at the time of sentencing, law enforcement in
Massachusetts had recovered -- from criminal use or
possession -- fifteen firearms that Brunson had purchased in South
Carolina. While this fact, by itself, did not conclusively
establish that Roache was involved in trafficking the firearms,
the district court noted that it was a relevant fact that tended
to support that Roache was involved. And if fifteen firearms that
Brunson purchased were recovered in Massachusetts by law
enforcement, it is not unreasonable to infer that more -- likely
many more -- firearms that Brunson purchased were trafficked to
Massachusetts. Someone was purchasing the firearms through
Brunson and delivering them to Massachusetts in 2020 and 2021; and
Roache was not only identified by Brunson in 2021 as his client
for the guns, but was definitively linked to six guns purchased in
2023 by Brunson. This supports the conclusion that Roache was
buying the firearms through Brunson and delivering them to
Massachusetts in 2020 and 2021, as Brunson stated in 2021.
Second, Brunson's 2021 statements were detailed. See
Colón-Maldonado, 953 F.3d at 11 (recognizing that the detailed and
nonconclusory nature of a witness's account is a sign of
reliability). In his first interview with ATF agents, Brunson
explained that he knew the person for whom he bought firearms by
- 12 - the name of "Boston"; that he recognized Roache as "Boston" when
shown a photo of Roache; that he had bought twenty-four firearms
for Roache; that he and Roache communicated through text messaging;
that Roache would text Brunson photos of firearms Roache wanted;
that they would meet in person, and that at those meetings Roache
would give Brunson cash as payment for the firearms; and that they
would meet at different locations to transfer firearms after
Brunson had bought them. This level of thoroughness and
detail -- which was subsequently corroborated by a similar pattern
of activity in 2023 -- further indicates that Brunson's account
was trustworthy.
Finally, and relatedly, we are persuaded that the
evidence relating to the firearms transactions between Brunson and
Roache in early 2023 indicated transactions that were
substantially similar to how Brunson described the 2020 and 2021
transactions. See Oquendo-Rivera, 586 F.3d at 67 (noting that
consistency and corroboration with objective evidence supports
reliability); United States v. Fontanez, 845 F.3d 439, 443 (1st
Cir. 2017) ("Objective evidence that corroborates a witness's
testimony may provide persuasive proof of that testimony's
reliability."). Both sets of transactions involved similar
patterns of text messaging between Brunson and Roache about guns
to purchase, money transfers, Brunson's purchase of firearms from
gun shops, and the physical transfer of firearms from Brunson to
- 13 - Roache. The uncontested evidence the ATF forwarded supporting the
2023 transactions corroborates Brunson's statements about the
earlier transactions.
Roache's reliance on other considerations is unavailing.
First, the district court's conclusion is not undermined simply
because the court found Brunson's account was not reliable on
certain ancillary points. Although the court did not credit
Brunson's statements that he only purchased firearms for Roache
and that he did not make any profit from the deals, and expressed
concern with Brunson's criminal action subsequent to the
interviews, it explained that Brunson's other statements were,
more likely than not, reliable because of the indicia of
trustworthiness discussed above. Accordingly, the district
court's reliability determination did not lack a sufficient
explanation -- unlike in United States v. Forbes, 181 F.3d 1 (1st
Cir. 1999). In that case, we took issue with the district court's
failure to explain why it found a witness to be reliable on one
issue yet unreliable on another issue, so we remanded for the
district court to "clarify and amplify the reasons for its factual
findings or, perhaps, reconsider its conclusion." Id. at 7–8.
That same concern does not apply here where the district court
provided an explanation for why it relied on the core elements of
Brunson's statements. And Brunson's account was not "internally
inconsistent or implausible on its face." Id. at 7 (quoting
- 14 - Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)). He did not
contradict himself in recounting his transactions with Roache and
it was not implausible that Roache was the actual buyer, as the
ATF had Roache's picture as a suspect and -- two years later -- was
able to document that Roache actually purchased firearms through
Brunson. The district court therefore did not need to reject
Brunson's statement in its entirety.
Roache's other arguments also fail to persuade us.
Roache argues that the district court should have drawn a negative
inference from the lack of records supporting the transactions
Brunson described in his 2021 interviews.6 But the court explained
that it would not draw the inference that the lack of inculpatory
evidence such as text messages from 2020 undermined Brunson's
statements about the 2020 and 2021 transactions because the history
on Brunson's phone did not go that far back in time. Even if the
government could have presented additional evidence, such as bank
and phone records, to corroborate the 2020 and 2021 transactions
that Brunson described, it only needed to prove Roache's uncharged
conduct by a preponderance. See Rondón-García, 886 F.3d at 21.
6 Roache complains that Brunson committed obstruction of justice by deleting text messages relating to the earlier gun transactions. This point was not made below, and, in any event, the record does not show that Brunson deleted the text messages after the initial interview. We therefore have no basis to conclude that this provides an additional reason to doubt Brunson's statement.
- 15 - As discussed above, there were sufficient indicia of the
trustworthiness of Brunson's statements for the district court to
decline to draw a negative inference from the lack of inculpatory
bank and phone records in the government's evidence.
Additionally, Roache contends that the district court
wrongly inferred that the ATF agents who conducted the first
interview with Brunson traveled from Boston to South Carolina. We
note that Roache failed to raise this point in the district court,
and thus courted waiver, see Shabshelowitz v. R.I. Dep't of Pub.
Safety, 155 F.4th 62, 66–67 (1st Cir. 2025); but even if we were
to entertain it, the argument does not help Roache. Roache does
not contest the fact that, regardless of where they were based,
the agents were seeking to interview Brunson because they suspected
him of being involved in firearms trafficking from South Carolina
to Massachusetts based on the fact that firearms he bought were
being recovered from criminals in Massachusetts. As the district
court noted, the agents "would have had a reason" for showing up
to interview Brunson. The district court reasonably inferred that
the agents' knowledge that firearms bought by Brunson were being
recovered in Massachusetts corroborated Brunson's detailed
statements about how he was buying the firearms for someone
nicknamed "Boston."
Finally, the fact that Brunson actually purchased
sixteen more firearms than the thirty he has admitted he bought
- 16 - for Roache does not necessarily undermine the fact that he had
purchased at least thirty firearms for Roache; that is, his
undercounting does not conflict in a meaningful way with his basic
narrative. The fact that Brunson did not disclose the total number
of firearms he purchased since 2020 is therefore irrelevant to the
reliability of the evidence the district court relied upon. And
Brunson's errant statement that Roache lived in South Carolina in
2021 does not necessarily discredit the reliability of Brunson's
statements about the firearms transactions because Roache may have
returned to visit often or split his time between South Carolina
and Massachusetts.
The district court therefore did not abuse its
discretion in crediting Brunson's statements regarding the number
of firearms he purchased for Roache. Although the court noted
that the determination was a "somewhat close" call (an observation
with which we agree), that simply indicates that the court
carefully rendered its decision after considering both the indicia
that supported and the indicia that undermined the reliability of
Brunson's statements. That it was a close call is precisely why
we cannot say that the district court abused its discretion in
crediting Brunson. Further, having concluded that the district
court did not abuse its discretion in determining that Brunson's
statement was reliable, it follows that the court's application of
the guidelines was not error.
- 17 - III.
We affirm the district court's judgment.
- 18 -