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
_________________
& Oreskovich was on brief for appellant.
____________

the Court, with whom

Sha
___

Margaret D. McGaughey, Assistant United States Attorney, w

______________________
whom Richard S. Cohen, United States Attorney, and Nicholas M. Ge
________________
_______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge.

______________
Corcimiglia pled

guilty to Count

charging conspiracy to possess

in

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

with intent to distribute cocaine

841(a)(1) and 846 and was sentenced

of imprisonment and a three-year

term of

On appeal, appellant challenges the district

enhancement under
a

dangerous

court's determination

affirm the sentence enhancement.

affirm

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

from the presentence investigation

of

the

sentencing

on appeal are

report (PSI), the

proceedings,

and

the

drawn

transcript

district

court's

codefendant

Carmen

Memorandum of Sentencing Judgment.

Appellant
Corcimiglia,

and

resided in

participation in

her

husband,

Cumberland,

Maine.

the drug conspiracy consisted

husband in his home-based

Ms. Corcimiglia's

of assisting her

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,
involving drugs, as follows:
(b)

in

reference

to

Specific Offense Characteristics

(1)

If a dangerous weapon (including a

firearm) was possessed, increase by
2 levels.
2
-22

offenses

On September 13, 1990, law enforcement agents conducted

a

search of

bedrooms,
.45

the

Corcimiglia

residence

found 37.4 grams of

automatic pistol and a

and,

in

cocaine and two

one

of

the

firearms, a Colt

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

Corcimiglia gave
presence

sentencing

firearms"

in the

appellant's

permit.

appellant's

appellant

testimony revealing additional facts

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

firearm had been purchased during the marriage.

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

and her husband had possession of the guns.

presence

constituted

noted that the

the

The district judge also concluded that both

the sentencing court found

the

their

She also

The district court found that the

residence and had

firearms were found.

appellant

husband for

-- she admitted

Moreover,

that Ms. Corcimiglia had knowledge of

firearms
conduct

during
and

during the offense.

the
that

drug
the

deals

that

weapons

were

The court, therefore,

concluded that it was not "clearly improbable that the possession

-33

of

the firearms was related to the offense conduct."

of

Sentencing Judgment

at

district court imposed

2.

Based

on these

Memorandum

findings,

the two-level enhancement under

the

U.S.S.G.

2D1.1(b)(1).
II.
II.
Discussion
Discussion
__________
In reviewing
will accord

due

a district

deference to

court's sentence, this

the

sentencing guidelines to the facts.

court's application

court
of

the

United States v. Bianco, 922

_______________________

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

States v. Camuti, 950 F.2d 72, 74 (1st

________________
v. David,
________

940 F.2d 722,

739 (1st Cir.)

matters

related

preponderance of
clear error.

to

the

United
______

Cir. 1991); United States

_____________
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
sentencing court
present,

to impose

unless it

connected with the

"clearly

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

United States v. Preakos, 907

__________________________

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

______________________

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

the

1989).

Here,

the

record reveals

husband had bought the weapons for

that

17

appellant's

the protection of the home, a

-44

home that was subsequently used to facilitate the distribution of

drugs.
and

Appellant had knowledge of where the weapons were located

had

access

to

them,

which

rendered

them

"reasonably

available" to her in the course of the criminal conduct.

Appellant seeks relief from
since

the weapons were possessed by

this court by arguing that

her husband and not by her,

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

possession of the weapons was "reasonably foreseeable."

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

presence in the home and their exact location.

that

the

weapons

Therefore, we

were

purchased for

do not think it

court to find that

the

the weapons'

She also admitted

home's

was clear error for

protection.

the district

appellant possessed the weapons and

subject to the U.S.S.G.

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

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
the drug

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

952 F.2d 20,

60 U.S.L.W.

In a

more

where

the

lot.

in an

cited

also owned by

cocaine

was arrested

locker while the weapon

remained in

drug

the weapon

was

was used

his automobile

___ U.S. ___,

has found

while

which formed the

United States v. McDowell, 918

__________________________

and

the

United States v. Almonte,

________________________

Also, this court

defendant

one

adjoining

the defendants, which

from the residence and which

3735 (1992).

in

recent case,

21-22 (1st Cir. 1991), cert. denied,

____________

where the

enhancement

discovered

stored

as the site for the drug transactions.

airport

(and cases

defendants' residence while

located across the street

error

at 9

protection of

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

_______

apartment

firearm

weapon was present for the

in the

no clear

standing at

an

basis for the

airport parking

F.2d 1004, 1011

(1st Cir.

1990) (and cases cited therein).

The fact that there may have been an alternative, legal

basis for the
prevent

weapon's possession,

the

Almonte,
_______

sentencing

court

952 F.2d at 25

in and of

from

itself, does

granting the

(claim that gun's

not

enhancement.

presence was to fend

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

____
-66

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

conclude that appellant offered insufficient

the "clear

the

judge to

evidence concerning

could

have been

used

during the offense.

Taken
proposition

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

involved in the drug business, there will be

the drugs

for

the

readily

during

and cash

sufficient evidence

to connect the weapons

allows

the district

under U.S.S.G.
to

to the offense conduct.

court to

2D1.1(b)(1).

come forward

with

the weapon's

trafficking.
Even
only

The burden then falls on defendant

the existence

would render it "clearly

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"

connect the firearms to the sale of drugs fails.

1B1.3,

of

Such evidence is lacking on this record.

her husband possessed the

argument

turn,

two-level enhancement

evidence demonstrating

special circumstances that

that

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

Here, appellant knew that the

____

912-13

weapons were

-77

possessed

by

transpiring on

her

husband;

knew that
____

the same premises

drug

transactions

and the drugs

stored in the same room where the weapons

were

themselves were

were located; and knew

____
that the

weapons

were

purchased for

premises

which was

Almonte,
_______

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

the

situs of
_____

protection

the

of

the

drug trafficking.

same

See
___

store).
We
"would

are not

not have

persuaded

used the

gun during

[either] thought it necessary."

any
make
to

case, there was ample

a finding that it was

that appellant
the drug

or her

husband

transaction had

See Almonte, 952 F.2d at 25.

___ _______

evidence for the

In

sentencing court to

reasonably foreseeable for appellant

connect her husband's possession

of the weapons

to the drug

activity, thus triggering the sentencing enhancement.

Accordingly,
affirmed.
affirmed
________

the judgment

of

the

district court

is

-88