
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]                                          ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Claudia C. Sharon, by Appointment of  the Court, with whom  Sharon            _________________                                           ______        & Oreskovich was on brief for appellant.        ____________            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.                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    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.   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                                         -2-                                          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                                         -3-                                          3          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                                         -4-                                          4          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."                                          -5-                                          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                                                                  ____                                         -6-                                          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          ________                                         -8-                                          8
