United States v. Deborah D. Corcimiglia

967 F.2d 724, 1992 U.S. App. LEXIS 14627, 1992 WL 143290
CourtCourt of Appeals for the First Circuit
DecidedJune 26, 1992
Docket91-2290
StatusPublished
Cited by54 cases

This text of 967 F.2d 724 (United States v. Deborah D. Corcimiglia) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Deborah D. Corcimiglia, 967 F.2d 724, 1992 U.S. App. LEXIS 14627, 1992 WL 143290 (1st Cir. 1992).

Opinion

FUSTE, District Judge.

The appellant Deborah 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. § 2Dl.l(b)(l) for the possession of a dangerous weapon. 1 *726 We find that the district court’s determination was not clearly erroneous and affirm the sentence enhancement.

I.

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.

On September 13, 1990, law enforcement agents conducted a search of the Corcimig-lia 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 pri- or 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 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.

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, 116 L.Ed.2d 628 (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 *727 of the home, a 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. § lB1.3(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.

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,

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Bluebook (online)
967 F.2d 724, 1992 U.S. App. LEXIS 14627, 1992 WL 143290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deborah-d-corcimiglia-ca1-1992.