United States v. Corcimiglia
U.S. Court of Appeals for the First Circuit
United States v. Corcimiglia
Opinion
USCA1 Opinion
June 26, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2290
UNITED STATES,
Appellee,
v.
DEBORAH D. CORCIMIGLIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Fuste,* District Judge.
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Claudia C. Sharon, by Appointment of the Court, with whom Sharon
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& Oreskovich was on brief for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Nicholas M. Gess,
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Assistant United States Attorney, were on brief for appellee.
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*Of the District of Puerto Rico, sitting by designation.
FUSTE, District Judge. The appellant Deborah
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Corcimiglia pled guilty to Count 1 of a superseding indictment
charging conspiracy to possess with intent to distribute cocaine
in violation of 21 U.S.C. 841(a)(1) and 846 and was sentenced
to a twelve-month term of imprisonment and a three-year term of
supervised release. On appeal, appellant challenges the district
court's two-level enhancement under U.S.S.G. 2D1.1(b)(1) for
the possession of a dangerous weapon.1 We find that the
district court's determination was not clearly erroneous and
affirm the sentence enhancement.
affirm
I.
I.
Background
Background
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The facts relating to the issue on appeal are drawn
from the presentence investigation report (PSI), the transcript
of the sentencing proceedings, and the district court's
Memorandum of Sentencing Judgment.
Appellant and her husband, codefendant Carmen
Corcimiglia, resided in Cumberland, Maine. Ms. Corcimiglia's
participation in the drug conspiracy consisted of assisting her
husband in his home-based drug trafficking business by answering
the phone and taking messages. In addition, she was present in
the house during various drug sales transacted by her husband.
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1U.S.S.G. 2D1.1(b)(1) provides, in reference to offenses
involving drugs, as follows:
(b) Specific Offense Characteristics
(1) If a dangerous weapon (including a
firearm) was possessed, increase by
2 levels.
2
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On September 13, 1990, law enforcement agents conducted
a search of the Corcimiglia residence and, in one of the
bedrooms, found 37.4 grams of cocaine and two firearms, a Colt
.45 automatic pistol and a Colt .38 Detective Special revolver.
While the cocaine was found in a dresser drawer, the weapons were
discovered in a closet, one contained in a zippered bag and the
other inside a case.
At the sentencing hearing, appellant Deborah
Corcimiglia gave testimony revealing additional facts about the
presence of weapons in the Corcimiglia home. Both guns were
purchased by appellant's husband, who possessed a "concealed
firearms" permit. One of the weapons had been purchased by
appellant's husband prior to their marriage, while the second
firearm had been purchased during the marriage. While appellant
testified that she had never handled either of the weapons -- nor
had she ever been trained in the use of firearms -- she admitted
knowing where the weapons were located. She also noted that the
reason given by her husband for their purchase was "for the
home's protection." The district court found that the appellant
resided in the residence and had access to the room where the
firearms were found. The district judge also concluded that both
appellant and her husband had possession of the guns. Moreover,
the sentencing court found that Ms. Corcimiglia had knowledge of
the presence of the firearms during the drug deals that
constituted the offense conduct and that the weapons were
reasonably available during the offense. The court, therefore,
concluded that it was not "clearly improbable that the possession
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of the firearms was related to the offense conduct." Memorandum
of Sentencing Judgment at 2. Based on these findings, the
district court imposed the two-level enhancement under U.S.S.G.
2D1.1(b)(1).
II.
II.
Discussion
Discussion
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In reviewing a district court's sentence, this court
will accord due deference to the court's application of the
sentencing guidelines to the facts. United States v. Bianco, 922
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F.2d 910, 911 (1st Cir. 1991); United States v. Paulino, 887 F.2d
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358, 359 (1st Cir. 1989). Factbound matters related to
sentencing need only be supported by a preponderance of the
evidence and will be set aside only for clear error. United
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States v. Camuti, 950 F.2d 72, 74 (1st Cir. 1991); United States
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v. David, 940 F.2d 722, 739 (1st Cir.) cert. denied, ___ U.S.
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___, 112 S.Ct. 605 (1991); United States v. Sklar, 920 F.2d 107,
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110-11 (1st Cir. 1990). Given the facts outlined above, we find
that the district court did not commit clear error.
The commentary to U.S.S.G. 2D1.1(b)(1) directs the
sentencing court to impose the enhancement "if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense." Our circuit is guided by this
"clearly improbable" standard. United States v. Preakos, 907
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F.2d 7, 8 (1st Cir. 1990); United States v. Ruiz, 905 F.2d 499,
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507 (1st Cir. 1990); United States v. Mocciola, 891 F.2d 13, 17
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(1st Cir. 1989). Here, the record reveals that appellant's
husband had bought the weapons for the protection of the home, a
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home that was subsequently used to facilitate the distribution of
drugs. Appellant had knowledge of where the weapons were located
and had access to them, which rendered them "reasonably
available" to her in the course of the criminal conduct.
Appellant seeks relief from this court by arguing that
since the weapons were possessed by her husband and not by her,
the lower court erred by failing to make a determination,
pursuant to U.S.S.G. 1B1.3(a),2 as to whether her husband's
possession of the weapons was "reasonably foreseeable." We think
that the district court permissibly found that both appellant and
her husband possessed the weapons. Memorandum of Sentencing
Judgment at 2. While appellant argues that the weapons were
possessed solely by her husband, the record is clear that she
lived with her husband, the house was used for narcotics
trafficking, and the firearms and the drugs were both in the same
room. Appellant admitted that she knew of both the weapons'
presence in the home and their exact location. She also admitted
that the weapons were purchased for the home's protection.
Therefore, we do not think it was clear error for the district
court to find that appellant possessed the weapons and was thus
subject to the U.S.S.G. 2D1.1(b)(1) enhancement.
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2U.S.S.G. 1B1.3(a)(1) provides that the base offense level and
the specific offense characteristics shall be determined on the
basis, inter alia, of "all acts and omissions committed or aided
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or abetted by the defendant, or for which the defendant would be
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otherwise accountable." (Emphasis added). Application note 1
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to 1B1.3(a) provides that conduct for which "defendant 'would
be otherwise accountable' also includes conduct of others in
furtherance of the execution of the jointly-undertaken criminal
activity that was reasonably foreseeable by the defendant."
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In earlier cases ruling on the propriety of U.S.S.G.
2D1.1(b)(1) enhancements, this court has recognized that the
mere presence of a firearm in the same residence which is used as
a site for drug transactions may allow a sentencing court to make
the inference that the weapon was present for the protection of
the drug operation. Preakos, 907 F.2d at 9 (and cases cited
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therein). In Paulino, 887 F.2d at 359, we affirmed the district
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court's enhancement when the weapon was discovered in one
apartment while the heroin was found stored in an adjoining
apartment in the same building. In a more recent case, the
firearm enhancement was upheld where the cocaine and drug
proceeds were stored in defendants' residence while the weapon
was found in a store, also owned by the defendants, which was
located across the street from the residence and which was used
as the site for the drug transactions. United States v. Almonte,
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952 F.2d 20, 21-22 (1st Cir. 1991), cert. denied, ___ U.S. ___,
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60 U.S.L.W. 3735 (1992). Also, this court has found no clear
error where the defendant was arrested while standing at an
airport locker while the weapon which formed the basis for the
enhancement remained in his automobile in the airport parking
lot. United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.
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1990) (and cases cited therein).
The fact that there may have been an alternative, legal
basis for the weapon's possession, in and of itself, does not
prevent the sentencing court from granting the enhancement.
Almonte, 952 F.2d at 25 (claim that gun's presence was to fend
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off potential robbers "is of little if any relevance"); Ruiz, 905
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F.2d at 508 (not "clearly improbable" that the weapon was
connected with the drug offenses simply because defendant, by
virtue of his employment, was required to carry a firearm).
Here, it was not clearly erroneous for the district judge to
conclude that appellant offered insufficient evidence concerning
the "clear improbability" that the guns could have been used
during the offense.
Taken together, the cited cases stand for the
proposition that when the weapon's location makes it readily
available to protect either the participants themselves during
the commission of the illegal activity or the drugs and cash
involved in the drug business, there will be sufficient evidence
to connect the weapons to the offense conduct. This, in turn,
allows the district court to impose the two-level enhancement
under U.S.S.G. 2D1.1(b)(1). The burden then falls on defendant
to come forward with evidence demonstrating the existence of
special circumstances that would render it "clearly improbable"
that the weapon's presence has a connection to the narcotics
trafficking. Such evidence is lacking on this record.
Even if we were to accept appellant's argument that
only her husband possessed the firearms (which we do not), her
argument that it was not "reasonably foreseeable" for her to
connect the firearms to the sale of drugs fails. Under U.S.S.G.
1B1.3, a sentence may be enhanced "in response to joint
criminal activity reasonably foreseeable by the defendant.
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U.S.S.G. 1B1.3, comment (n.1)." Bianco, 922 F.2d at 912-13
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(emphasis in text). Here, appellant knew that the weapons were
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possessed by her husband; knew that drug transactions were
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transpiring on the same premises and the drugs themselves were
stored in the same room where the weapons were located; and knew
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that the weapons were purchased for protection of the same
premises which was the situs of the drug trafficking. See
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Almonte, 952 F.2d at 25 (defendant knew weapon's location in the
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store).
We are not persuaded that appellant or her husband
"would not have used the gun during the drug transaction had
[either] thought it necessary." See Almonte, 952 F.2d at 25. In
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any case, there was ample evidence for the sentencing court to
make a finding that it was reasonably foreseeable for appellant
to connect her husband's possession of the weapons to the drug
activity, thus triggering the sentencing enhancement.
Accordingly, the judgment of the district court is
affirmed.
affirmed
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Reference
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