United States v. Tang: Foreseeability and Proof of Firearm Use in Joint Hobbs Act Robberies Under the U.S. Sentencing Guidelines

United States v. Tang: Foreseeability and Proof of Firearm Use in Joint Hobbs Act Robberies Under the U.S. Sentencing Guidelines

I. Introduction

The First Circuit’s decision in United States v. Tang, No. 24‑1809 (1st Cir. Nov. 26, 2025), is a significant sentencing opinion at the intersection of Hobbs Act robbery, relevant-conduct doctrine, and firearm enhancements under the U.S. Sentencing Guidelines.

The case involves defendant–appellant Li Wen (“Tony”) Tang, who pleaded guilty to two counts of Hobbs Act robbery and aiding and abetting, 18 U.S.C. §§ 2, 1951, arising from coordinated robberies of two Massachusetts massage businesses. Although Tang did not personally wield a gun, his sentence was enhanced based on his co-defendants’ possession and “otherwise use” of firearms during the robberies. Tang received concurrent 78‑month sentences, at the bottom of the guideline range.

On appeal, Tang challenged:

  • The application of a six‑level enhancement for the Brookline robbery under U.S.S.G. § 2B3.1(b)(2)(B) (firearm “otherwise used”), and
  • The application of a five‑level enhancement for the Stoneham robbery under § 2B3.1(b)(2)(C) (firearm “brandished or possessed”).

He argued that:

  • It was not reasonably foreseeable to him that co-defendants would carry or use firearms in these robberies, and
  • The government failed to show that the weapons used were genuine “firearms” as defined by the Guidelines, especially given that no gun was recovered and one was unloaded.

The First Circuit, in an opinion authored by Judge Lynch, rejected those arguments and affirmed the sentence. In doing so, the court reinforced several important principles about:

  • How foreseeability operates in jointly undertaken criminal activity,
  • What proof suffices to establish the use of a “firearm” at sentencing,
  • The meaning of “otherwise used” versus “brandished,” and
  • The permissible use of co-defendant trial testimony at sentencing.

While the decision is grounded in well-established doctrine, it provides a clear, fact-rich application of those principles to a modern robbery scheme and clarifies their reach in contexts beyond the classic bank-robbery scenario.

II. Factual and Procedural Background

A. The Robberies

1. Brookline (Balance Reflexology Spa)

On the evening of June 12, 2022, co-defendant Nunez picked up Tang and then collected co-defendant Barbosa. The three targeted a Brookline massage business, Balance Reflexology Spa. Tang:

  • Entered first, posing as a customer,
  • Interacted with the sole employee, Jin Zhang, including asking about other staff,
  • Communicated by text with his co-defendants during trips to the restroom, and
  • Ultimately unlocked the front door after Zhang had locked it, enabling Nunez and Barbosa to enter.

When Nunez and Barbosa entered:

  • Each carried a handgun, according to Zhang.
  • One knocked Zhang’s phone away, struck her in the face while pointing the gun at her head, dragged her by the hair, and demanded money.
  • They stole around $500, bound Zhang with duct tape, ransacked the premises, and took her phone.

Tang did not wield a weapon, but he had set up and facilitated the robbery and coordinated by text.

2. Stoneham (May’s Spa)

After the Brookline robbery, Tang told Nunez he had “something else set up.” The group proceeded to May’s Spa in Stoneham. Barbosa recruited additional associates, and:

  • Nunez, Barbosa, and one associate entered the spa around 10 p.m.,
  • Nunez and Barbosa again carried handguns, which they pointed at occupants while demanding money,
  • Six victims were bound, about $1,100 and phones were taken, and the robbers fled.

Victims, including owner Chunjie Li and her friend, Arthur Fraas (a licensed gun owner), described the intruders wielding guns, with one gun pointed at Fraas’s head, leaving him “petrified.”

B. Investigation and Searches

On August 10, 2022, Boston police stopped Nunez’s car, which had been linked to the robberies. A search of the car revealed:

  • An M&P .40‑caliber magazine loaded with six rounds in the glove compartment.

The next day, FBI agents searched Nunez’s residence and found:

  • A Smith & Wesson safety and instruction manual.

This circumstantial evidence supported the inference that Nunez possessed a real handgun.

C. Guilty Plea and Co-Defendant Trial

Tang pled guilty on April 3, 2024, to two counts of Hobbs Act robbery and aiding and abetting. During the plea colloquy, he stated:

  • He “did not have any personal knowledge that a firearm was used” during the robberies, and
  • He “did not see anybody pull out a gun.”

The prosecutor responded that these disagreements did not affect the elements of Hobbs Act robbery as charged, and the district court accepted the plea.

Thereafter, Barbosa went to trial before the same district judge. Relevant testimony from that trial was later used at Tang’s sentencing, most notably:

  • Nunez’s testimony that:
    • He initially met Tang in poker games and began driving him to rob “behind-the-scenes sexual massage” businesses.
    • At first he was unarmed, but, after Tang told him to “bring a firearm, just to intimidate,” he began carrying a small black semiautomatic handgun (kept unloaded) to these robberies.
    • On June 12, 2022, he picked up Tang and then a “friend” (Barbosa), who had a black semiautomatic handgun.
    • Tang directed the robberies, providing locations and operational detail, and indicated that “extra people” would be needed for Stoneham.
  • Victim testimony from Brookline and Stoneham describing multiple guns pointed directly at victims, including at their heads.

D. The Presentence Report and Guideline Calculations

Under the 2022 Guidelines, the PSR calculated the offense levels as follows:

  1. Base offense level of 20 for each Hobbs Act robbery (U.S.S.G. § 2B3.1(a)).
  2. Brookline robbery:
    • +6 levels because a firearm was “otherwise used” (pointed at Zhang’s head), § 2B3.1(b)(2)(B).
    • +2 levels for physical restraint of the victim, § 2B3.1(b)(4)(B).
    • Adjusted offense level: 28.
  3. Stoneham robbery:
    • +5 levels because a firearm was “brandished or possessed,” § 2B3.1(b)(2)(C).
    • +2 levels for physical restraint of multiple victims, § 2B3.1(b)(4)(B).
    • Adjusted offense level: 27.
  4. Multiple-count adjustment: +2 (grouping rules).
  5. Acceptance of responsibility: −3 levels.
  6. Total offense level: 27.
  7. Criminal history category: II.
  8. Guidelines range: 78–97 months.

Tang objected to the firearm enhancements, contesting both:

  • Foreseeability of firearm use by his co-defendants, and
  • Whether the weapons were in fact “firearms” under the Guidelines (especially since one was unloaded and none were recovered).

He argued that, without those enhancements, his guideline range should be 41–51 months and sought a downward variance to 30 months.

The district court overruled the objections, adopted the PSR’s calculations, and imposed concurrent 78‑month sentences with three years of supervised release.

III. Summary of the First Circuit’s Opinion

The First Circuit affirmed Tang’s 78‑month sentence. Its main holdings can be summarized as follows:

  1. Standard of review: Because Tang largely preserved his objections, the court reviewed the sentence for abuse of discretion, factual findings (foreseeability and firearm status) for clear error, and guidelines interpretation de novo.
  2. Foreseeability of firearm use: The district court did not clearly err in finding it reasonably foreseeable to Tang that:
    • His co-defendants would possess firearms at both robberies, and
    • They would “otherwise use” those firearms at Brookline by pointing them at the victim’s head.
    This was grounded in Tang’s prior instruction to Nunez to bring a gun to intimidate victims in earlier robberies and Tang’s central organizing role in these robberies.
  3. Proof that the weapons were “firearms”: Even though the guns were never recovered and one was unloaded, the government met its burden (by a preponderance of the evidence) to show they were genuine firearms under U.S.S.G. § 1B1.1 cmt. n.1(H). Credible lay testimony, corroborating physical evidence (magazine, manual), and victims’ reactions sufficed.
  4. “Otherwise used” standard: Pointing a gun at a victim’s head, as occurred in Brookline, qualifies as “otherwise used” and supports a six‑level enhancement rather than mere “brandishing.”
  5. Use of co-defendant trial testimony: The sentencing court permissibly relied on testimony from Barbosa’s trial (over which it had also presided), consistent with prior First Circuit precedent, because Tang had notice and the testimony was found credible.
  6. No categorical “massage-parlor exception”: The court rejected Tang’s argument that robberies of massage parlors, as opposed to banks, make firearm use unforeseeable. Both contexts predictably involve direct encounters with victims and risk of resistance, making gun use foreseeably within the joint criminal activity.
  7. Unloaded gun still a “firearm,” not just a “dangerous weapon”: The court rejected Tang’s attempt to characterize the unloaded handgun as a mere “dangerous weapon” subject to lesser enhancements, emphasizing that a weapon “designed to expel a projectile by the action of an explosive” is a “firearm” even if unloaded.
  8. Procedural/due process argument waived and meritless: Tang argued on appeal that the district court was obliged to explicitly reconcile his plea-hearing denial of knowledge of firearm use with Nunez’s testimony. The First Circuit held this argument unpreserved and waived (for failure to brief plain error), and in any event legally unfounded: a sentencing court need not detail every credibility resolution when relying on testimony it reasonably deems reliable.

Accordingly, the sentence—at the bottom of the guideline range—was affirmed.

IV. Detailed Analysis

A. Standard of Review and Burden of Proof

The First Circuit reaffirmed the familiar, three-tiered approach to sentencing review:

  • Overall sentencing decision: reviewed for abuse of discretion (United States v. González‑Santillan, 107 F.4th 12 (1st Cir. 2024)).
  • Factual findings (e.g., foreseeability, firearm status): reviewed for clear error, meaning the appellate court will not disturb them unless firmly convinced a mistake has been made.
  • Interpretation/application of the Guidelines: reviewed de novo (no deference to the district court’s legal conclusions).

At sentencing, facts must be established by a preponderance of the evidence, not beyond a reasonable doubt. The court reiterates that sentencing judges may rely on any relevant information with “sufficient indicia of reliability,” including hearsay and co-defendant trial testimony (United States v. Ramirez‑Ayala, 101 F.4th 80 (1st Cir. 2024); United States v. Fígaro‑Benjamín, 100 F.4th 294 (1st Cir. 2024)).

B. Guideline Framework: Firearm Enhancements and Relevant Conduct

1. Weapon Enhancements in Robbery Cases

Under U.S.S.G. § 2B3.1(b)(2), robbery offenses receive graduated increases based on firearms or other weapons:

  • +7 levels if a firearm is discharged;
  • +6 levels if a firearm is “otherwise used”;
  • +5 levels if a firearm is “brandished or possessed”;
  • +4 levels if a dangerous weapon is “otherwise used”; and
  • +3 levels if a dangerous weapon is “brandished or possessed.”

Two definitional points from § 1B1.1 cmt. n.1 are crucial:

  • “Firearm” means a weapon that:
    • “will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or
    • its frame/receiver, or a silencer/muffler, or “destructive device.”
  • “Dangerous weapon” includes:
    • An instrument capable of inflicting death or serious bodily injury, or
    • An object that closely resembles such an instrument, or
    • An object used in a way that creates the impression it is such an instrument.

Another key distinction:

  • “Brandished”: the weapon is displayed or its presence is otherwise made known to intimidate, § 1B1.1 cmt. n.1(C).
  • “Otherwise used”: conduct that is more than mere brandishing, display, or possession, but short of actual discharge, § 1B1.1 cmt. n.1(J).

2. Relevant Conduct and Jointly Undertaken Criminal Activity

Tang’s enhancements derive from relevant conduct attributable to him under U.S.S.G. § 1B1.3(a)(1)(B). For “jointly undertaken criminal activity” (a criminal plan or scheme undertaken in concert with others), a defendant is accountable not only for his own acts, but also for acts of others that are:

  1. Within the scope of the jointly undertaken activity,
  2. In furtherance of that activity, and
  3. Reasonably foreseeable in connection with that activity.

The commentary offers a directly relevant example in Application Note 3(D): Two defendants agree to commit a robbery, and one assaults and injures a victim. The second defendant is accountable for the assault and injury even if he did not agree to it and even if he urged the first not to hurt anyone, because such violence is foreseeable in the context of a robbery.

Tang conceded that the robberies were jointly undertaken and the co-defendants’ actions were within scope and in furtherance of the plan. He focused only on the third prong: whether firearm use was reasonably foreseeable to him.

C. Foreseeability of Firearm Possession and Use

1. The Court’s Evidentiary Basis

The First Circuit found strong record support that it was reasonably foreseeable to Tang that:

  • His co-defendants would possess firearms at both robberies, and
  • They would “otherwise use” a firearm at Brookline by pointing it at the victim’s head.

Key points:

  • Prior pattern of robberies with Tang directing gun use: Nunez testified that, in earlier robberies of similar behind-the-scenes massage businesses:
    • He initially acted as unarmed “muscle,” while Tang orchestrated the robberies.
    • At Tang’s instruction (“bring a firearm, just to intimidate”), he began carrying a small black semiautomatic handgun (though unloaded).
    • Tang understood the role of the gun was to intimidate victims into compliance.
  • Role as planner and coordinator: Tang was not a peripheral participant; he:
    • Selected the targets and provided addresses,
    • Posed as a customer to set up access,
    • Communicated by text with Nunez as the robberies unfolded, and
    • Unlocked the Brookline front door at the critical moment.
  • Continuity between robberies that night: After Brookline, where guns were used, Tang immediately announced he had “something else set up” (Stoneham), a close-in-time second robbery. The court held that the first robbery put him on notice that guns were in play and would likely be used again an hour later.
  • Victim testimony: Zhang testified that, as soon as Tang unlocked the door, “two guys came in with two guns” and pointed them at her head. Stoneham victims gave similar descriptions. This corroborated Nunez’s account and illustrated how the guns were used (more than mere brandishing).

Given this context, the district court’s finding of foreseeability was not clearly erroneous.

2. Case Law on Foreseeability in Robbery Settings

The First Circuit reinforced and extended prior holdings that, in robbery schemes:

  • Guns are often “tools of the trade,” and
  • A planner who substantially participates can reasonably foresee that firearms will be used to intimidate victims and overcome resistance.

It relied on cases such as:

  • United States v. Balsam, 203 F.3d 72 (1st Cir. 2000):
    • Held that a defendant could reasonably foresee the use of a gun in a second robbery when the first robbery in the series involved using a gun to intimidate employees.
    • The absence of explicit discussion about using a gun before the second robbery did not defeat foreseeability.
  • United States v. Spinney, 65 F.3d 231 (1st Cir. 1995):
    • Held that substantial involvement in planning and executing a robbery supports a “compelling inference” that the defendant knew salient details, including that an accomplice was likely to carry a gun.
  • United States v. Lasseque, 806 F.3d 618 (1st Cir. 2015):
    • Described guns as “tools of the trade” in certain offenses and held that awareness of the general plan is enough to infer knowledge that weapons will be used to carry it out.
  • United States v. Montes‑Fosse, 824 F.3d 168 (1st Cir. 2016):
    • Rejected the argument that firearm use was unforeseeable where an accomplice approached a postal worker in daylight with a gun to demand packages, holding that such use is reasonably foreseeable in that context.
  • Lassend v. United States, 898 F.3d 115 (1st Cir. 2018) (citing Dean v. United States, 556 U.S. 568 (2009)):
    • Reaffirmed that one who commits first-degree robbery runs the risk that an accomplice will employ or threaten violent force to facilitate the robbery.

Tang tried to distinguish his case by emphasizing that these robberies targeted massage parlors, not banks or postal workers. The First Circuit refused to create a categorical distinction. The core reasoning:

  • Both bank and massage-parlor robberies involve entering occupied premises, confronting workers/customers, and seeking cash in situations where resistance or intervention by others is possible.
  • Thus, using a gun to intimidate or deter interference is reasonably foreseeable in both settings.

3. Objective Foreseeability vs. Actual Knowledge

Tang underscored that:

  • No witness testified that he saw Nunez or Barbosa armed before entry, and
  • He personally claimed to have had no knowledge that guns would be used.

But the court emphasized that the standard is reasonable foreseeability, not actual knowledge. It cited:

  • Montes‑Fosse, where foreseeability existed even if the defendant had not actually seen the gun.
  • United States v. Carter, 560 F.3d 1107 (9th Cir. 2009), where a late-arriving defendant could be held liable for firearm use because, given the nature of the robbery plan, guns were reasonably expected even if he did not personally hear them discussed.

In short, the focus is on what a reasonable person in the defendant’s position, with his knowledge of the plan and prior dealings, should have anticipated—not on whether he subjectively admits awareness.

The court also dismissed Tang’s suggestion that the district court had to credit his plea-hearing assertion of non-knowledge. A sentencing judge is not required to accept a defendant’s self-serving, unsupported claim of innocence in the face of contrary evidence (United States v. Adams, 971 F.3d 22, 40 (1st Cir. 2020)).

D. Proving That the Weapons Were “Firearms”

1. Legal Standard

The Guidelines’ definition of “firearm” closely mirrors the statutory definition in 18 U.S.C. § 921 (incorporated into § 924(c) jurisprudence). The First Circuit has consistently held that for proving use of a firearm:

  • The government does not need scientific or ballistic testing or to recover the weapon.
  • Descriptive lay testimony—from victims or co-participants—can be enough.
  • A witness need not be a firearms expert or physically handle the gun.

The court relied on:

  • United States v. Cruz‑Rivera, 904 F.3d 63 (1st Cir. 2018) and United States v. Cruz‑Díaz, 550 F.3d 169 (1st Cir. 2008):
    • Both upheld firearm findings based on credible witness descriptions without physical recovery of the gun.
  • United States v. Martinez‑Armestica, 846 F.3d 436 (1st Cir. 2017):
    • Held that victims’ reactions to seeing what appeared to be guns could themselves corroborate that real firearms were used.
  • United States v. De León‑Quiñones, 588 F.3d 748 (1st Cir. 2009):
    • Concluded that references in testimony to “pistol,” “revolver,” or “firearm” are naturally read as referring to real guns.

2. Evidence Supporting Firearm Status in Tang

The First Circuit held that the district court had ample basis to find that Nunez and Barbosa used real firearms, including:

  • Nunez’s testimony that:
    • He carried a small black semiautomatic handgun.
    • Barbosa also had a black semiautomatic handgun.
    • He had used this gun in prior robberies orchestrated by Tang.
  • Physical evidence:
    • A loaded M&P .40 caliber magazine found in Nunez’s car.
    • A Smith & Wesson safety and instruction manual found in his apartment.
    • These tend to corroborate the existence of a real, functioning firearm.
  • Victim descriptions and reactions:
    • Zhang’s testimony that two men came in with “two guns” pointed at her head.
    • Fraas’s description of a “black stainless steel gun,” consistent with his knowledge as a licensed gun owner, and his terror at nearly being shot.
    • Victims were “petrified,” consistent with genuine belief that the firearms were real and operable.

Tang’s argument that the absence of recovered weapons or testing is fatal was squarely rejected. Credible circumstantial evidence and testimony are enough; sentencing courts can draw common-sense inferences from the totality of the record (United States v. Burgos, 133 F.4th 183, 190 (1st Cir. 2025); United States v. Rogers, 17 F.4th 229 (1st Cir. 2021)).

3. Unloaded Guns and the “Dangerous Weapon” Argument

Tang advanced an additional argument: that an unloaded gun should be treated not as a “firearm” but as a mere “dangerous weapon,” warranting lower enhancements. The First Circuit rejected this for two reasons:

  1. Text of the Guidelines: The definition of “firearm” in § 1B1.1 cmt. n.1(H) focuses on design and capability (“will or is designed to or may readily be converted to expel a projectile by the action of an explosive”). It does not require the gun to be loaded at the moment of the offense.
  2. Structure of § 2B3.1(b)(2): The Guidelines separately account for “dangerous weapons,” including fake guns or objects used to simulate guns. Where the weapon is actually a real firearm, exposing victims to that danger—even if no round is chambered—justifies the “firearm” enhancements.

Thus, under Tang, an unloaded handgun used in a robbery remains a “firearm” for Guidelines purposes and cannot be recast as a lesser “dangerous weapon” solely on that basis.

E. “Otherwise Used” vs. “Brandished”

The Brookline robbery received a +6 enhancement under § 2B3.1(b)(2)(B) for “otherwise used” firearms. Tang did not dispute on appeal that pointing a gun at a victim’s head qualifies as “otherwise used.” The First Circuit implicitly accepted and reinforced that understanding, citing:

  • United States v. Warren, 279 F.3d 561 (7th Cir. 2002), holding that pointing a gun at a bank teller to intimidate her into compliance constitutes “otherwise used.”

The distinction matters:

  • Simply displaying the gun or making it known to intimidate (pointing it generally in the air, keeping it visible at one’s side) is brandishing (+5).
  • Focusing the gun directly on a victim’s head or body while issuing commands crosses the line into otherwise used (+6) because of the intensified threat and immediate coercive impact.

This line-drawing is consistent with the Guidelines and other circuits, and Tang reinforces it for First Circuit sentencing practice.

F. Use of Co-Defendant Trial Testimony at Sentencing

A critical procedural point in Tang is the sentencing judge’s reliance on testimony from Barbosa’s trial. The First Circuit reaffirmed that:

  • Sentencing judges may use credible testimony from a co-defendant’s trial, even if the defendant was not a party to that trial, as long as:
    • The testimony has sufficient indicia of reliability, and
    • The defendant had adequate notice that the testimony would be used (Fígaro‑Benjamín).

Here:

  • The same judge presided over both Barbosa’s trial and Tang’s sentencing, making him “well-acquainted” with the crew’s methods and credibility issues.
  • Tang’s own sentencing memorandum made use of that trial testimony, undermining any claim of surprise.
  • Nunez’s testimony was subject to cross-examination at Barbosa’s trial; that the cross was conducted by Barbosa’s counsel rather than Tang’s is not disqualifying (United States v. Berrios‑Miranda, 919 F.3d 76 (1st Cir. 2019); United States v. Acevedo‑López, 873 F.3d 330 (1st Cir. 2017)).

The appellate court emphasized that credibility assessments are quintessentially for the sentencing judge, who has a “front row seat” to evaluate demeanor and consistency (United States v. Carvajal, 85 F.4th 602 (1st Cir. 2023); United States v. Nagell, 911 F.3d 23 (1st Cir. 2018)).

G. Waiver, Plain Error, and Due Process Claims

Tang raised on appeal an argument that the district court was required to explicitly resolve the “material conflict” between:

  • His plea-hearing statement denying knowledge of any gun use, and
  • Nunez’s contrary testimony at Barbosa’s trial.

The First Circuit treated this objection as:

  • Unpreserved—it was not specifically raised in the district court as a requirement for additional explanation or as a due process claim.
  • Waived on appeal, because Tang did not even mention, let alone argue for, the plain-error standard required when reviewing unpreserved claims (United States v. Martínez‑Mercado, 132 F.4th 61 (1st Cir. 2025); United States v. Cruz‑Ramos, 987 F.3d 27 (1st Cir. 2021)).

Even assuming arguendo that the issue were properly before the court, the panel held it would fail on the merits:

  • Sentencing courts are not required to provide a detailed commentary on every credibility issue. Identifying the “main factors” behind the sentencing decision suffices (United States v. Sayer, 916 F.3d 32, 38 (1st Cir. 2019); United States v. Vargas‑García, 794 F.3d 162, 166 (1st Cir. 2015)).
  • Due process is satisfied where the court relies on evidence it reasonably finds to be reliable (United States v. Rodriguez, 115 F.4th 24, 49 (1st Cir. 2024); United States v. Walker, 665 F.3d 212 (1st Cir. 2011)). Here, it was permitted to credit Nunez’s testimony over Tang’s self-serving denial.

The opinion thus underscores two practice points:

  • Defense counsel must properly preserve procedural objections at sentencing, and
  • On appeal, unpreserved issues must be explicitly presented under the plain-error framework or they risk outright waiver in the First Circuit.

V. Precedents and Authorities in Context

The decision in Tang synthesizes and applies a number of prior precedents. Key clusters of authorities include:

A. Standards of Review and Sentencing Fact-Finding

  • Gall v. United States, 552 U.S. 38 (2007): Established that an abuse-of-discretion standard governs the review of sentences and that selecting a sentence based on clearly erroneous facts is procedural error.
  • United States v. Ramirez‑Ayala, 101 F.4th 80 (1st Cir. 2024) and United States v. Colón‑De Jesús, 85 F.4th 15 (1st Cir. 2023): Clarified that sentencing facts need only be proven by a preponderance and that courts may rely on any relevant information with adequate reliability.
  • United States v. Lee, 892 F.3d 488 (1st Cir. 2018) and Berrios‑Miranda: Confirmed sentencing courts have “considerable leeway” and may rely on virtually any dependable information.

B. Relevant Conduct and Foreseeability

  • Guidelines § 1B1.3 and Application Note 3(D): Provide the framework for attributing co-conspirators’ conduct based on scope, furtherance, and foreseeability, with the robbery example central to Tang.
  • Balsam, Spinney, Lasseque, Montes‑Fosse, and Lassend: Together establish that violent or armed conduct is foreseeable in robbery contexts, especially for planners or repeat participants.

C. Proof of Firearms without Recovery

  • Cruz‑Rivera, Cruz‑Díaz, Martinez‑Armestica, and De León‑Quiñones: Stand for the principle that lay descriptions and victims’ reactions can suffice to prove that a real gun was used; physical recovery is not required.
  • Guidelines Amendment 388 (1991): Noted that the Sentencing Commission revised the “firearm” definition to align with 18 U.S.C. § 921, reinforcing the statutory–guideline harmony used in Tang.

D. Use of Co-Defendant Trial Testimony

  • Fígaro‑Benjamín and Berrios‑Miranda: Authorize reliance on trial testimony from related proceedings, provided the defendant has notice and the testimony is reliable.
  • Acevedo‑López: Clarifies that even absent cross-examination, such testimony can be used if sufficiently reliable; here, cross-examination had in fact occurred (by Barbosa’s counsel).

E. Procedural Requirements and Waiver

  • Rivera‑Rivera, 146 F.4th 59 (1st Cir. 2025) and Montero‑Montero, 817 F.3d 35 (1st Cir. 2016): Set out the plain-error test.
  • Martínez‑Mercado and Cruz‑Ramos: Hold that failure to invoke or argue plain error constitutes waiver of unpreserved claims.
  • Sayer and Vargas‑García: Emphasize that the district court need only explain the main factors underlying its decision, not address every potential dispute.

VI. Impact and Implications

A. For Robbery Participants and “Unarmed” Co‑Defendants

Tang sends a clear message: a defendant who plans or orchestrates a robbery cannot insulate himself from firearm enhancements simply by:

  • Not personally carrying a gun, or
  • Claiming a lack of actual knowledge that co-defendants would be armed, especially when he has previously used guns in similar schemes.

Key implications:

  • Planners bear heightened exposure: Those who identify targets, coordinate timing, and serve as insiders are at real risk of being held responsible for armed conduct by their associates.
  • Prior conduct matters: If a defendant previously directed co-participants to bring guns “just to intimidate,” courts will view subsequent robberies as foreseeably armed, even if the defendant claims no discussion of guns occurred this time.
  • No “low-risk” robbery carve-out: Targeting lesser-regulated or “behind-the-scenes” businesses does not reduce foreseeability of firearms; courts will treat them similarly to banks or postal settings when the plan involves confronting victims for money.

B. Plea Strategy When Co‑Defendants Go to Trial

Tang is also a cautionary tale for plea strategy:

  • Defendants who plead early but whose co-defendants go to trial should anticipate that trial testimony—particularly from cooperating witnesses—may later shape their sentencing exposure.
  • The fact that they were not parties to that trial does not preclude the sentencing judge from relying on that testimony if they have adequate notice and an opportunity to respond.
  • Defense counsel should proactively:
    • Monitor co-defendant trials,
    • Prepare to challenge the reliability and scope of such testimony at sentencing, and
    • Build a record of any due process objections to its use.

C. Firearm Proof and the Reality of “Unrecovered Guns” Cases

The decision reinforces that the government can secure firearm enhancements even when:

  • No weapon is recovered, and
  • The firearm was unloaded during the offense.

Prosecutors will lean heavily on:

  • Detailed descriptions by victims and co-conspirators,
  • Corroborative physical evidence (magazines, manuals, ammunition), and
  • Victims’ reactions and fear responses.

Defense counsel must be ready to:

  • Probe witnesses’ familiarity with firearms,
  • Highlight inconsistencies in descriptions, and
  • Present contrary evidence (e.g., toy guns, airsoft weapons) where available.

D. Clarifying the Gun-Use Gradient: Brandished vs. Otherwise Used

The confirmation that pointing a gun at a victim’s head is “otherwise used” solidifies a bright-line distinction in the First Circuit. This has real sentencing consequences:

  • +6 levels (otherwise used) can markedly increase guidelines ranges over +5 (brandished), especially in multi-count robbery cases.
  • Practitioners should focus on the specifics of how the firearm was manipulated and directed at victims, not just its presence.

E. Procedural Rigor and Appellate Waiver

Tang underscores the First Circuit’s insistence that:

  • New procedural and due process theories raised on appeal must be both preserved below and properly framed under the applicable standard (plain error if unpreserved).
  • Failure to even mention “plain error” can result in outright waiver, regardless of the underlying merits.

This reinforces the importance of:

  • Making clear, record-based objections at sentencing, and
  • Careful appellate briefing that respects standards-of-review doctrines.

VII. Key Legal Concepts Explained Simply

1. Preponderance of the Evidence

At sentencing, the government must prove relevant facts (like foreseeability or firearm status) by a “preponderance of the evidence.” This means:

  • More likely than not, or
  • Greater than 50% probability.

It is a lower standard than “beyond a reasonable doubt.”

2. Clear Error Review

On appeal, factual findings are reviewed for “clear error.” The appellate court asks:

  • Is there evidence in the record that supports the district judge’s finding?
  • Would we be firmly convinced the judge got it wrong?

If there is support in the record and the judge’s choice between competing versions is reasonable, the finding stands.

3. Abuse of Discretion

The overall sentence is reviewed for abuse of discretion. The appellate court looks for:

  • Legal errors (e.g., miscalculating the Guidelines),
  • Clearly erroneous fact-finding, or
  • Unreasonable weighing of the 18 U.S.C. § 3553(a) factors.

Absent such problems, the sentence will be upheld.

4. Jointly Undertaken Criminal Activity & Relevant Conduct

When people commit crimes together, each can be held accountable for:

  • Their own acts, and
  • The reasonably foreseeable acts of their partners that further the agreed crime.

In a robbery, it is generally foreseeable that someone might:

  • Threaten violence,
  • Carry a gun, or
  • Hurt a victim to overcome resistance.

5. Foreseeability vs. Actual Knowledge

Foreseeability asks:

  • Would a reasonable person, in the defendant’s position and with his knowledge, anticipate that this conduct could occur during the criminal plan?

It does not require proof that the defendant subjectively knew the detail (e.g., “I knew he had a gun”), only that he should have anticipated it.

6. Brandished vs. Otherwise Used

  • Brandished: Showing the gun or making its presence known to scare or intimidate (e.g., waving it around or holding it in view).
  • Otherwise used: More direct, targeted use to control or coerce (e.g., pressing it to someone’s head while issuing demands).

“Otherwise used” is treated as more serious and yields a higher enhancement.

7. Firearm vs. Dangerous Weapon

  • Firearm: A real gun or similar device designed to fire a projectile via an explosive (even if unloaded at the time).
  • Dangerous weapon: Something that can cause serious injury or death, or an object made to look like such a weapon (e.g., a toy pistol used as a fake gun).

Real guns, even unloaded ones, trigger the higher “firearm” enhancements.

8. Plain Error and Waiver

  • Plain error: A standard applying to issues not raised below; the appellant must show an obvious error that affected substantial rights and seriously undermined the fairness of proceedings.
  • Waiver: When a party does not argue plain error at all, the appellate court may treat the issue as waived and refuse to consider it, even if there might have been error.

VIII. Conclusion

United States v. Tang does not announce a wholly new doctrine, but it provides a clear, instructive application of existing sentencing principles to a modern robbery scheme involving massage businesses, multiple co-defendants, and non-recovered firearms.

Its lasting significance lies in several reinforced rules:

  • Robbery planners and insiders can be held liable for co-conspirators’ firearm use when such use is reasonably foreseeable—from the nature of the plan and prior gun-involved conduct—even absent actual knowledge.
  • Pointing a gun at a victim’s head is “otherwise used” and warrants a severe enhancement.
  • Unloaded guns and unrecovered weapons still qualify as “firearms” if credible testimony and circumstantial evidence show they are real, operable firearms.
  • Sentencing courts may rely on co-defendant trial testimony, provided it is reliable and the defendant has notice, and appellate courts will defer heavily to the district judge’s credibility determinations.
  • Procedural and due process objections must be preserved and properly framed under the applicable standards of review, or they risk waiver.

In the broader sentencing landscape, Tang strengthens the message that those who orchestrate violent or inherently risky crimes like robbery “run the risk” of being held responsible for the predictable violent acts—especially the use of guns—by their associates. It thus functions as a significant clarifying precedent on foreseeability, firearm proof, and relevant conduct within the First Circuit’s sentencing jurisprudence.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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