United States v. Corcimiglia

• Court: Court of Appeals for the First Circuit
• Decided: June 26, 1992
• Docket: 91-2290
• Status: Published

Opinion

USCA1 Opinion

June 26, 1992       UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 91-2290

                                    UNITED STATES,

                                      Appellee,

                                          v.

                               DEBORAH D. CORCIMIGLIA,

                                Defendant, Appellant.

                                 ____________________

                     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
            ______________________
        whom Richard S. Cohen,  United States Attorney, and Nicholas  M. Gess,
             ________________                               _________________
        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
                                      __________

                    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.
                                 
             ____________________

          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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                                          2

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
                                      __________

                    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
                                               _______________________

          F.2d 910, 911 (1st Cir. 1991); United States v. Paulino, 887 F.2d
                                         ________________________

          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
                                                                     ______

          States v. Camuti, 950 F.2d 72, 74 (1st  Cir. 1991); United States
          ________________                                    _____________

          v. David,  940 F.2d 722,  739 (1st Cir.)  cert. denied, ___  U.S.
          ________                                  ____________

          ___, 112 S.Ct. 605 (1991); United  States v. Sklar, 920 F.2d 107,
                                     _______________________

          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
                                            __________________________

          F.2d 7, 8  (1st Cir. 1990); United States v.  Ruiz, 905 F.2d 499,
                                      ______________________

          507 (1st Cir. 1990); United  States v. Mocciola, 891 F.2d 13,  17
                               __________________________

          (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.

____________________

          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
                  _____ ____
          or abetted by the defendant, or  for which the defendant would be
                                                                   ________
          otherwise accountable."   (Emphasis  added).  Application  note 1
          _____________________
          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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                                          5

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
                                _______

          therein).   In Paulino, 887 F.2d at 359, we affirmed the district
                         _______

          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,
                                                  ________________________

          952 F.2d 20,  21-22 (1st Cir. 1991), cert. denied,  ___ U.S. ___,
                                               ____________

          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.
                __________________________

          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
          _______

          off potential robbers "is of little if any relevance"); Ruiz, 905
                                                                  ____

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                                          6

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.
                                                        __________________

          U.S.S.G.   1B1.3,  comment (n.1)."   Bianco, 922  F.2d at  912-13
                                               ______

          (emphasis in text).   Here, appellant knew that the  weapons were
                                                ____

                                         -7-
                                          7

possessed  by  her  husband;  knew that  drug  transactions  were
                                        ____

          transpiring on  the same premises  and the drugs  themselves were

          stored in the same room where the weapons  were located; and knew
                                                                       ____

          that the  weapons  were  purchased for  protection  of  the  same

          premises  which was  the  situs of  the  drug trafficking.    See
                                    _____                               ___

          Almonte,  952 F.2d at 25 (defendant knew weapon's location in the
          _______

          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
                                           ___ _______

          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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