367 F.3d 82 (2nd Cir. 2004), 03-1543, United States v. Sicurella
|Citation:||367 F.3d 82|
|Party Name:||UNITED STATES of America, Appellant, v. Vincent SICURELLA, also known as "Jimmy," Defendant-Appellee, Mark Jamieson, Defendant.|
|Case Date:||May 05, 2004|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: March 11, 2004.
Anthony M. Bruce, Assistant United States Attorney, for Michael A. Battle, United States Attorney, Western District of New York, for Appellant United States of America.
John J. Molloy, West Seneca, N.Y., for Defendant-Appellee Vincent Sicurella.
Before: SOTOMAYOR, KATZMANN, KEITH, Circuit Judges. [*]
KATZMANN, Circuit Judge.
This appeal involves interpretation of U.S.S.G. § 2E2.1(b)(1)(C), which provides for a three-level enhancement "if a dangerous weapon (including a firearm) was brandished or possessed" in connection with making or financing an extortionate extension of credit or collecting an extension of credit by extortionate means.
The Defendant-Appellee Vincent Sicurella was convicted of using extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894. See United States v. Sicurella, 61 Fed.Appx. 754 (2d Cir.2003)
The Probation Department's pre-sentence report ("PSR") added a three-point enhancement to the recommended sentence based on U.S.S.G. § 2E2.1(b)(1)(C). At sentencing, however, the defendant objected to the enhancement and the district court sustained the defendant's objection.
On appeal, this Court remanded for re-sentencing, finding that the district court had failed to make the requisite factual findings regarding the basis for its denial of the government's request for enhancement. Sicurella, 61 Fed.Appx. at 756-57. In a Memorandum and Order dated July 28, 2003, the district court found that there was no evidence that defendant had possession of, or ready access to, a dangerous weapon at the time of his meeting with Denaro. Accordingly, the district court declined to impose the enhancement.
The government now appeals, arguing that it was error for the district court to find that the defendant did not have possession of or ready access to the weapon during the commission of the criminal offense. We agree, and therefore we reverse the judgment of the district court.
On July 13, 2000, Sicurella was charged in a two-count indictment with using extortionate means to collect an extension of credit (Count I) and conspiring to do so (Count II). Specifically, the defendant was charged with threatening one Henry Pauly, the owner of Pauly Roofing Company. Pauly had obtained a loan from loan-shark Frank "Poochie" Chimento in the mid-1990s and made payments on the loan until Chimento's death. In the spring of 1998, the defendant visited Pauly and informed him that he was collecting on the Chimento loan. Pauly then made payments to the defendant until the end of 1999, when, due to his poor financial condition, Pauly ceased making payments. Defendant then began threatening Pauly.
In early-2000, defendant approached Pauly's business partner Frank Denaro to ask for his assistance in collecting the debt from Pauly. Denaro then contacted the Federal Bureau of Investigation ("FBI") and agreed to cooperate with the government by secretly recording his conversations with the defendant and Pauly. The FBI made numerous recordings of the defendant conversing with Denaro and Pauly. At trial, these recordings constituted the primary evidence against the defendant.
On June 20, 2000, Denaro called the defendant and arranged to meet him at a Denny's restaurant in Hamburg, New York. Defendant drove to the restaurant in his black Chevrolet Monte Carlo. He left the car parked outside and proceeded inside the restaurant, where the FBI agents arrested him.
The next day, June 21, FBI agents conducted an inventory search of the defendant's vehicle. In the course of the search, they...
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