                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 10-11382                 ELEVENTH CIRCUIT
                             Non-Argument Calendar                APRIL 18, 2011
                           ________________________                JOHN LEY
                                                                    CLERK
                      D.C. Docket No. 9:09-cr-80115-KLR-1

UNITED STATES OF AMERICA,
                                                                Plaintiff - Appellee,

                                       versus

VINCENT SCOGNAMIGLIO,
a.k.a. Bobby Vincent,
                                                             Defendant - Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                                 (April 18, 2011)

Before EDMONDSON, HULL and MARTIN, Circuit Judges.


PER CURIAM:


      Vincent Scognamiglio appeals his 48-month sentence imposed after he

pleaded guilty to possession of a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k). Scognamiglio argues that the district court clearly

erred by finding that Scognamiglio took a substantial step toward executing his

murder plot to justify application of the United States Sentencing Guideline for

attempted murder. The district court committed no reversible error; we affirm.

       The guideline for unlawful possession of a firearm under Section 922(k), to

which Scognamiglio pleaded guilty, cross references the guideline for attempt and

directs that, if a defendant used or possessed the firearm in connection with the

attempted commission of another offense, the correct guideline is the offense level

for the attempt. See U.S.S.G. § 2K2.1(c)(1)(A); § 2X1.1. The guideline for

attempt, in turn, directs that, if an attempt is expressly covered by another

guideline, that other guideline applies. U.S.S.G. § 2X1.1(c)(1). Section

2A2.1(a)(1) imposes a base offense level of 33 for a first-degree murder attempt,

which was the base level used by the district court as part of its sentencing

calculations.*

       Attempted murder, prohibited by 18 U.S.C. § 1113, requires proof of a

specific intent to kill the victim. Braxton v. United States, 111 S. Ct. 1854, 1859

n.1 (1991). A person is guilty of attempt if he had the specific intent to commit the


       *
         Because the statutory maximum sentence was less than the minimum of the ultimate
applicable guideline range in this case, the guideline sentence was the 60-month statutory
maximum sentence.

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underlying crime and took a “substantial step” towards committing that crime.

United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007). “A substantial step can

be shown when the defendant’s objective acts mark his conduct as criminal and, as

a whole, strongly corroborate the required culpability.” Id. (internal quotation

marks and citation omitted). The district court’s determination about a “substantial

step” is a question of fact, which we will not disturb unless it is clearly erroneous.

See 18 U.S.C. § 3742(e); United States v. Rothenberg, 610 F.3d 621, 627 (11th

Cir. 2010) (footnote omitted).

      The district court found by a preponderance of the evidence that

Scognamiglio took a substantial step towards committing first-degree murder. The

district court identified the following evidence in determining that Scognamiglio

had taken a substantial step: Scognamiglio ordered a silencer, Scognamiglio gave

an undercover informant a barrel to be threaded for a silencer and a gun in payment

for the silencer, and Scognamiglio traveled to a meeting where he was to pick up

the silencer. The transcripts of the meeting between Scognamiglio and the

confidential source also contained evidence of Scognamiglio’s insistence on being

the triggerman, of his specific identification of the victims, and of his surveillance

of potential locations for the murders. In addition, the transcripts supported the

police officer’s uncontradicted testimony that Scognamiglio never expressed a


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desire to abandon the plan. We cannot conclude, based on this evidence, that the

district court’s findings were clearly erroneous.

      Given the district court’s finding that Scognamiglio’s conduct constituted a

substantial step towards first-degree murder and satisfied the elements of attempted

murder, we see no reversible error in the district court’s sentence.

      AFFIRMED.




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