Professional Documents
Culture Documents
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]
___________________
____________________
Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
____________________
and Fuste,* District Judge.
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____________________
Claudia C. Sharon, by Appointment of
_________________
& Oreskovich was on brief for appellant.
____________
Sha
___
guilty to Count
violation of 21 U.S.C.
to a twelve-month term
supervised release.
court's two-level
the
possession of
district
The
appellant
1 of a
Deborah
superseding indictment
term of
dangerous
court's determination
U.S.S.G.
weapon.1
was
not
2D1.1(b)(1)
We
find
for
that
the
clearly erroneous
and
I.
I.
Background
Background
__________
The facts
relating to
the issue
the
sentencing
on appeal are
proceedings,
and
the
drawn
transcript
district
court's
codefendant
Carmen
and
resided in
participation in
her
husband,
Cumberland,
Maine.
Ms. Corcimiglia's
of assisting her
in
in
reference
to
offenses
search of
bedrooms,
.45
the
Corcimiglia
residence
and,
in
one
of
the
firearms, a Colt
While the cocaine was found in a dresser drawer, the weapons were
discovered
the
Corcimiglia gave
presence
sentencing
firearms"
in the
appellant's
permit.
appellant's
appellant
of weapons
purchased by
hearing,
Corcimiglia home.
husband, who
One
of the
husband prior
weapons
to their
about the
Both
guns were
"concealed
possessed
had been
purchased by
marriage, while
Deborah
the second
While appellant
testified that she had never handled either of the weapons -- nor
had she ever been trained in the use of firearms
knowing where the weapons were located.
reason
given
by her
home's protection."
resided in the
purchase was
access to the
of
the
the
offense
reasonably available
"for the
appellant
room where
presence
constituted
the
their
She also
husband for
-- she admitted
Moreover,
firearms
conduct
during
and
the
that
drug
the
deals
that
weapons
were
-33
of
of
Sentencing Judgment
at
2.
Based
on these
Memorandum
findings,
the
U.S.S.G.
2D1.1(b)(1).
II.
II.
Discussion
Discussion
__________
In reviewing
will accord
due
a district
deference to
the
court's application
court
of
the
F.2d 910, 911 (1st Cir. 1991); United States v. Paulino, 887 F.2d
________________________
358,
359
(1st
sentencing
Cir.
need only
evidence and
will be
1989).
be
Factbound
supported by
set aside
only for
matters
related
preponderance of
clear error.
to
the
United
______
U.S.
___, 112 S.Ct. 605 (1991); United States v. Sklar, 920 F.2d 107,
_______________________
110-11 (1st Cir. 1990).
above, we find
to impose
unless it
to U.S.S.G.
is
the enhancement
clearly improbable
offense."
Our
improbable" standard.
F.2d 7, 8
2D1.1(b)(1) directs
"if the
weapon was
that the
weapon was
circuit is
guided by
this
507 (1st Cir. 1990); United States v. Mocciola, 891 F.2d 13,
__________________________
(1st Cir.
the
1989).
Here,
the
record reveals
that
17
appellant's
-44
had
access
to
them,
which
rendered
them
"reasonably
the
lower
pursuant
court
erred
to U.S.S.G.
by
failing to
1B1.3(a),2 as
make
determination,
to whether
her husband's
We think
that the district court permissibly found that both appellant and
her
husband possessed
Judgment
at 2.
While
possessed solely by
lived
with
her
the
weapons.
Memorandum of
appellant argues
her husband,
husband,
the
that the
the record is
house
was
Sentencing
weapons were
clear that
used
for
she
narcotics
trafficking, and the firearms and the drugs were both in the same
room.
Appellant
admitted that
she knew
of both
the
weapons
Therefore, we
were
purchased for
do not think it
the
the weapons'
protection.
the district
was thus
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."
-55
In earlier
cases ruling
2D1.1(b)(1) enhancements,
on the propriety
this court
of U.S.S.G.
has recognized
that the
operation.
therein).
court's
Preakos,
_______
907 F.2d
enhancement
while the
apartment in
was found in
when
the
heroin
the same
enhancement
proceeds were
was
stored in
a store,
weapon
was
was found
building.
upheld
In a
more
where
the
lot.
in an
cited
also owned by
cocaine
was arrested
drug
the weapon
was
was used
his automobile
has found
while
and
the
defendant
one
adjoining
3735 (1992).
in
recent case,
where the
enhancement
discovered
stored
airport
(and cases
error
at 9
protection of
apartment
firearm
in the
no clear
standing at
an
airport parking
(1st Cir.
weapon's possession,
the
Almonte,
_______
sentencing
court
952 F.2d at 25
in and of
from
itself, does
granting the
not
enhancement.
F.2d
at
508
connected
virtue
Here,
(not
with the
of his
it was
"clearly
improbable"
drug offenses
employment,
not clearly
that
simply because
was required
erroneous for
to
improbability" that
the guns
weapon was
defendant, by
carry a
firearm).
the district
the
judge to
evidence concerning
could
have been
used
together,
that when
available to protect
the
commission of
the
the
cited
cases
weapon's location
either the
the illegal
stand
makes it
participants themselves
activity or
the drugs
for
the
readily
during
and cash
sufficient evidence
the district
under U.S.S.G.
to
2D1.1(b)(1).
come forward
with
the weapon's
trafficking.
Even
only
presence has
a connection
improbable"
to the
if we
were to
accept appellant's
narcotics
that it
was not
a sentence
criminal
activity
U.S.S.G.
1B1.3,
(emphasis in text).
may
argument that
firearms (which we
do not), her
"reasonably foreseeable"
of
argument
turn,
two-level enhancement
evidence demonstrating
impose the
This, in
be
enhanced
reasonably
"in
foreseeable
comment (n.1)."
for
Under
response
her to
U.S.S.G.
to
joint
by the defendant.
__________________
Bianco, 922
______
F.2d at
912-13
weapons were
-77
possessed
by
transpiring on
her
husband;
knew that
____
drug
transactions
were
themselves were
____
that the
weapons
were
purchased for
premises
which was
Almonte,
_______
the
situs of
_____
protection
the
of
the
drug trafficking.
same
See
___
store).
We
"would
are not
not have
persuaded
used the
gun during
that appellant
the drug
or her
husband
transaction had
In
sentencing court to
of the weapons
to the drug
the judgment
of
the
district court
is
-88