367 F.3d 82 (2nd Cir. 2004), 03-1543, United States v. Sicurella

Docket Nº:03-1543.
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

Page 82

367 F.3d 82 (2nd Cir. 2004)

UNITED STATES of America, Appellant,

v.

Vincent SICURELLA, also known as "Jimmy," Defendant-Appellee,

Mark Jamieson, Defendant.

No. 03-1543.

United States Court of Appeals, Second Circuit

May 5, 2004

Argued: March 11, 2004.

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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)

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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.

BACKGROUND

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 discovered a small hammer and a sap in the seat-back pocket of the front passenger bucket seat. The agents obtained a search warrant pursuant to which they seized the hammer and the sap. These items were then entered into evidence at the trial.

On October 15, 2001, following a jury trial, the defendant was convicted on Count I of the indictment, using extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894. The PSR prepared by the Probation Department determined that, pursuant to the federal Sentencing Guidelines, the defendant's base offense level was 20. The PSR also recommended a three-point enhancement pursuant to U.S.S.G. § 2E2.1(b)(1)(C), based on defendant's possession of a dangerous

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weapon (the sap). The text of Guideline § 2E2.1 is as follows (emphasis added):

§ 2E2.1. Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means

(a) Base Offense Level: 20

(b) Specific Offense Characteristics

(1) (A) If a firearm was discharged increase by 5 levels; or

(B) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; or

(C) if a dangerous weapon (including a firearm) was brandished or possessed, increase by 3 levels.

(2) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury ....

At sentencing, the district court--over the government's objection--declined to impose the enhancement.

Defendant appealed his conviction and sentence. By Summary Order dated April 2, 2003, this Court upheld the conviction but, with regard to the sentence, found that the district court had not made sufficient factual findings to facilitate appellate review. Accordingly, we vacated the sentence and remanded the case to the district court for findings and re-sentencing. See Sicurella, 61 Fed.Appx. at 756-57.

At re-sentencing, the district court made the following factual findings to support its denial of the enhancement sought by the government:

There is no evidence that Sicurella had the weapon in his possession--or readily available to him--at any time when he was committing the federal crime--i.e., threatening physical harm to the debtor. Contrarily, he was at the appointed place--where he was arrested--for the purpose of collecting further payments upon the debt. There is no evidence that, at such time and place--and, particularly at a time and place of threats--, Sicurella had possession of or ready access to the sap or other weapon.

The government now appeals, arguing that the district court erred and abused its discretion in its construal of...

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