Circumstantial Proof of Predominant Profit Intent and Repetitiveness Suffices to Uphold Unlicensed Firearms-Dealing Conviction under § 922(a)(1)(A)

Introduction

In United States v. Omar Shorter, Jr., the Sixth Circuit affirmed an unlicensed firearms-dealing conviction under 18 U.S.C. § 922(a)(1)(A) and related false-statement convictions under 18 U.S.C. § 922(a)(6). The appellate challenge focused narrowly on whether the government presented sufficient evidence that Shorter was “engaged in the business” of dealing in firearms, as defined in 18 U.S.C. § 921(a)(21)(C), in light of the definition’s 2022 revisions under the Bipartisan Safer Communities Act and the ATF’s 2024 regulations. Because the defendant failed to move for judgment of acquittal under Rule 29, review was limited to whether there was a “manifest miscarriage of justice”—that is, whether the record was devoid of evidence pointing to guilt.

The panel held that circumstantial proof—comprised of a high-volume, repetitive purchase-and-resale pattern, corroborating financial app transactions, incriminating text messages evincing profit-seeking intent, the recovery of a significant number of the purchased guns in others’ possession or at crime scenes, and the defendant’s admissions—was enough to sustain the § 922(a)(1)(A) conviction under this stringent standard. The decision clarifies how courts may apply the post-2022 “engaged in the business” definition, emphasizing that:

Repetitiveness and predominant profit intent are the touchstones, and
Purely circumstantial evidence can carry the government’s burden.

Summary of the Opinion

Shorter purchased 39 firearms between 2020 and 2022, often buying duplicate models and multiple guns on the same day. After ATF scrutiny, agents learned that nine of those firearms were later recovered by law enforcement in other hands or at crime scenes. Surveillance and records tied two December 2022 Taurus pistol purchases to Cash App transfers from the Berryman brothers (relatives of Shorter’s girlfriend). Shorter admitted to buying approximately 30 pistols and selling about 28 or 29 of them. His text messages suggested he expected to “get paid,” and he expressed anger that he did not profit on the Berryman transactions.

At trial, an ATF expert explained why Shorter’s purchasing pattern and post-purchase recoveries were consistent with trafficking. The jury convicted on all counts. On appeal, Shorter solely contended that the proof was insufficient to show he was “engaged in the business” of dealing firearms because (in his view) the only sales with specifics—the Berryman transactions—did not make him money.

The Sixth Circuit affirmed. Because Shorter failed to move for acquittal, the court reviewed only for a “manifest miscarriage of justice,” which requires that the record be devoid of evidence of guilt. The panel held there was ample circumstantial evidence from which a reasonable jury could infer repetitive purchase-and-resale activity undertaken with a predominant profit intent. The court rejected Shorter’s reliance on cases with heavier sales volumes as setting a minimum evidentiary threshold, emphasized that circumstantial evidence alone can suffice, and clarified that although not every straw purchaser is a dealer, straw purchases can serve as evidence of unlicensed dealing when embedded in a repetitive, profit-oriented scheme.

Analysis

Precedents and Authorities Cited

Jackson v. Virginia, 443 U.S. 307 (1979): Provides the baseline sufficiency standard—whether any rational trier of fact could find the elements beyond a reasonable doubt when evidence is viewed in the light most favorable to the prosecution.
United States v. Kennedy, 714 F.3d 951 (6th Cir. 2013), and United States v. Graham, 622 F.3d 445 (6th Cir. 2010): Reinforce that appellate courts do not weigh evidence or assess credibility on sufficiency review; circumstantial evidence may be enough.
United States v. Jordan, 544 F.3d 656 (6th Cir. 2008), and United States v. Price, 134 F.3d 340 (6th Cir. 1998): Establish the elevated “manifest miscarriage of justice” standard for sufficiency challenges when Rule 29 motions were not made—reversal only if the record is devoid of evidence pointing to guilt.
Bryan v. United States, 524 U.S. 184 (1998), and United States v. Manthey, 92 F. App’x 291 (6th Cir. 2004): Provide the elements of § 922(a)(1)(A), including the knowledge requirement (knowing the conduct was unlawful).
United States v. Tyson, 653 F.3d 192 (3d Cir. 2011): Articulates a helpful formulation: criminal liability attaches when profit is the predominant purpose and repetitiveness is the modus operandi.
United States v. Sadler, 24 F.4th 515 (6th Cir. 2022): Government need not disprove every avenue of innocence; juries may draw reasonable inferences from circumstantial evidence.
United States v. Gray, 470 F. App’x 468 (6th Cir. 2012): No minimum sales volume is required; smaller numbers can support conviction under § 922(a)(1)(A).
United States v. Kish, 424 F. App’x 398 (6th Cir. 2011), and United States v. Dettra, No. 99-3667, 2000 WL 1872046 (6th Cir. Dec. 15, 2000): Cited by Shorter to suggest the government’s proof here was comparatively weaker; the panel clarifies these cases do not set a floor for sufficiency.
Statutory and Regulatory Framework:
- 18 U.S.C. § 922(a)(1)(A): Prohibits engaging in the business of dealing in firearms without a license.
- 18 U.S.C. § 921(a)(21)(C): Defines “engaged in the business” of dealing in firearms as devoting time, attention, and labor to repetitive purchase and resale to predominantly earn a profit, and excludes occasional hobbyist/collector transactions.
- 18 U.S.C. § 921(a)(22): Defines “to predominantly earn a profit” as a predominantly pecuniary intent; adds that proof of profit is not required for those engaged in regular and repetitive transactions for criminal purposes or terrorism.
- Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12002 (2022): Amended the “engaged in the business” definition, shifting to “predominantly earn a profit.”
- ATF regulations (2024): The panel notes ATF promulgated rules further detailing “engaged in the business” and “predominantly earn a profit.” See 27 C.F.R. § 478.13.

Legal Reasoning

The panel’s analysis proceeds in two steps: (1) the governing standard of review and (2) application of the “engaged in the business” definition to the evidentiary record.

First, by failing to move for acquittal, Shorter triggered the stringent “manifest miscarriage of justice” standard: reversal only if the record is devoid of evidence pointing to guilt. This is more demanding than ordinary Jackson sufficiency review. The court emphasizes its obligation to view the record in the light most favorable to the government and to respect the jury’s role in drawing reasonable inferences.

Second, under § 921(a)(21)(C), the government needed to show that Shorter devoted time, attention, and labor to repetitive purchase-and-resale activity with the predominant intent to earn a profit. Shorter did not contest repetitiveness; he argued the proof did not show a profit motive because the only detailed sales (to the Berrymans) were not profitable. The panel declined to resolve whether proof of actual profit is required generally because Shorter did not press that issue; instead, it focused on whether the record offered evidence of predominant profit intent.

The panel identified multiple strands of circumstantial and direct evidence pointing to profit-seeking intent embedded in a repetitive pattern:

Volume and pattern: 39 firearms purchased over ~2.5 years, with multiple duplicate buys and multiple guns on the same day.
Dispositions: Only two firearms found during the search; Shorter admitted he sold 28–29 and reported one stolen.
Trafficking indicators: A substantial subset of the purchased firearms was later recovered in others’ possession or at crime scenes; an ATF expert characterized this pattern as consistent with illegal trafficking.
Contemporaneous financial transfers: Cash App payments from the Berryman brothers matched firearm purchases in timing and amount, supporting a resale narrative rather than hobbyist collecting.
Text messages: Shorter’s “better get paid” and similar statements showed an expectation of pecuniary gain and frustration when sales did not yield profit.

Taken together, this evidence permitted the jury to infer that Shorter’s predominant intent was to earn profit through repetitive purchase and resale. That some transactions may not have been profitable did not negate predominant profit intent across the course of conduct. Nor did the absence of business trappings (e.g., advertising, storefront) defeat the government’s case, as the statute focuses on intent and repetition rather than formalities of enterprise structure. The court also rejected the premise that proof of larger sales volumes in other cases (e.g., Dettra) sets a minimum threshold for sufficiency. Finally, while acknowledging that not all straw purchasers are “dealers,” the panel held that straw purchases can be probative of unlicensed dealing when embedded in a broader, repetitive profit-oriented scheme.

The court noted—but did not resolve—an instructional irregularity: the district court used the definition of “engaged in the business” relevant to repairing/retrofitting (§ 921(a)(21)(D)) rather than selling (§ 921(a)(21)(C)). Because no objection was made, any review would be for plain error, and both sides conceded the definitions were materially identical for purposes of this case. The panel therefore saw no basis to disturb the verdict on that ground.

Impact and Implications

Although not recommended for publication, this decision offers useful guidance for practitioners and lower courts applying the post-2022 “engaged in the business” definition:

Circumstantial proof can suffice. Prosecutors need not present ledgers, bank records, or formal business indicia to establish predominant profit intent. Patterns of duplicate purchases, quick dispositions, third-party recoveries, matched peer-to-peer payments, and incriminating communications can collectively carry the burden.
Predominant profit intent is about course-of-conduct, not transaction-by-transaction profit. A defendant cannot defeat the “profit motive” element simply by pointing to a few unprofitable sales if the overall pattern supports the inference of profit-seeking intent.
No minimum volume. The court reiterates that cases with higher sales volumes do not set a floor for sufficiency. A relatively smaller set of repetitive transactions can meet the statutory standard when paired with profit-intent evidence.
Straw purchases can be evidence of dealing. While § 922(a)(6) and § 922(a)(1)(A) criminalize distinct conduct, straw purchases embedded in repeated, profit-oriented resales can support a dealer conviction.
Rule 29 practice matters. Defense counsel’s failure to move for acquittal dramatically restricted appellate review. The manifest-miscarriage standard—requiring a record devoid of evidence of guilt—is exceptionally difficult to overcome.
Post-BSCA framework operationalized. The opinion places practical contours on “predominantly earn a profit” and “engaged in the business” as amended in 2022 and noted in 2024 ATF regulations, signaling that courts will focus on intent and repetition discerned from real-world indicia.
Jury instructions. Even though the mis-citation to § 921(a)(21)(D) did not affect the outcome here, the opinion underscores the importance of tracking the correct statutory subsection (selling versus repairing/retrofitting) to avoid avoidable appellate issues.

Complex Concepts Simplified

“Engaged in the business” (selling): A person repeatedly buys and resells guns with the main goal of making money. One-off hobbyist trades or liquidating a personal collection don’t count.
“Predominantly earn a profit”: The person’s main intent is to get paid, even if some individual deals lose money. The focus is the overall purpose behind the pattern of transactions.
Straw purchase vs. dealing: A straw purchase involves buying a gun for someone else while falsely claiming it’s for oneself (violating § 922(a)(6)). Someone becomes a “dealer” (without a license) when they do repeated buy-and-resell transactions with a predominant profit motive (violating § 922(a)(1)(A)). A person can be a straw purchaser without being a dealer, but straw buys can be evidence of dealing if part of a broader repetitive, profit-oriented scheme.
Circumstantial evidence: Proof based on inference from facts (e.g., patterns, timing, messages), as opposed to direct admissions or documents. It is fully valid and can be enough to convict.
Manifest miscarriage of justice review: A very strict appellate standard applied when the defendant fails to move for acquittal at trial. Reversal occurs only if the record lacks any evidence pointing to guilt.
ATF Form 4473: The federal form buyers complete during firearm transfers from dealers; it includes questions about whether the buyer is the actual purchaser.

Conclusion

United States v. Shorter underscores that, after the 2022 statutory revisions, “engaged in the business” under § 921(a)(21)(C) hinges on two interlocking concepts: repetition and predominant profit intent. The Sixth Circuit’s affirmance—under the demanding “manifest miscarriage of justice” standard—highlights that a web of circumstantial indicators can establish both elements: serial, duplicate purchases; rapid post-purchase dispositions; third-party recoveries; synchronized peer-to-peer payments; incriminating communications; and defendant admissions.

The decision does not create a new minimum threshold for the number of firearms or require formal trappings of a business, and it resists conflating straw purchasing with unlicensed dealing while acknowledging their evidentiary overlap in practice. For prosecutors, Shorter validates reliance on circumstantial trafficking indicia to prove predominant profit intent; for defense counsel, it is a cautionary tale about preserving sufficiency challenges with timely Rule 29 motions and ensuring precise jury instructions keyed to § 921(a)(21)(C). In the broader legal landscape, Shorter offers pragmatic guidance on applying the post-BSCA statutory language and ATF’s 2024 elaborations, demonstrating how courts will evaluate patterns and intent in modern, app-mediated firearms resale schemes.