367 F.

3d 82

UNITED STATES of America, Appellant,

v.
Vincent SICURELLA, also known as "Jimmy," DefendantAppellee,
Mark Jamieson, Defendant.
No. 03-1543.

United States Court of Appeals, Second Circuit.

Argued: March 11, 2004.
Decided: May 5, 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.

BACKGROUND
5

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.
9

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 threepoint enhancement pursuant to U.S.S.G. 2E2.1(b)(1)(C), based on defendant's
possession of a dangerous weapon (the sap). The text of Guideline 2E2.1 is as
follows (emphasis added):

10

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

an Extension of Credit by Extortionate Means

11

(a) Base Offense Level: 20

12

(b) Specific Offense Characteristics

13

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

14

(B) if a dangerous weapon (including a firearm) was otherwise used, increase

by 4 levels; or

15

(C) if a dangerous weapon (including a firearm) was brandished or possessed,

increase by 3 levels.

16

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

17

At sentencing, the district court over the government's objection declined

to impose the enhancement.

18

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.

19

At re-sentencing, the district court made the following factual findings to

support its denial of the enhancement sought by the government:

20

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.

21

The government now appeals, arguing that the district court erred and abused
its discretion in its construal of U.S.S.G. 2E2.1(b)(1)(C).

DISCUSSION
22

We review the district court's findings of fact for clear error. United States v.
Lanese, 890 F.2d 1284, 1291 (2d Cir.1989), cert. denied, 495 U.S. 947, 110
S.Ct. 2207, 109 L.Ed.2d 533 (1990). In addition, we give due deference to the
district court's application of the Guidelines to the facts. United States v.
Morales, 239 F.3d 113, 117 (2d Cir.2000). However, we review issues of law
de novo. Id. In this case, we address the legal issue of whether the district court
properly interpreted U.S.S.G. 2E2.1(b)(1)(C), and thus we review de novo the
district court's determination.

23

"The Sentencing Guidelines have the force and effect of law, and are to be
construed as if they were a statute, giving the words used their common
meaning, absent a clearly expressed manifestation of contrary intent." United
States v. Maria, 186 F.3d 65, 70 (2d Cir.1999) (quoting United States v. Kirvan,
86 F.3d 309, 311 (2d Cir.1996)) (internal quotation marks and emphasis
omitted). At issue in this case is whether the defendant "possessed" a dangerous
weapon for purposes of the three-level enhancement prescribed by U.S.S.G.
2E2.1(b)(1)(C).

24

It is clear that 2E2.1 is implicated when a "dangerous weapon" was

"discharged" or "otherwise used" or "brandished or possessed" in connection
with making or financing an extortionate extension of credit or collecting and
extension of credit by extortionate means. In the case before us, there is no
dispute that the defendant was engaged in extortion to collect an extension of
credit in violation of 18 U.S.C. 894. The question is, whether in connection
with that crime, the defendant "possessed" a "dangerous weapon."

25

Under the Guidelines, a "dangerous weapon" is defined as "an instrument

capable of inflicting death or serious bodily injury." U.S.S.G. 1B1.1, app. n.
1(d)(i). A sap, which Webster's defines as a "a blackjack, policeman's club, or
other object used as a bludgeon,"1 is clearly an instrument "capable of inflicting
death or serious bodily injury." C.f., United States v. Orr, 312 F.3d 141, 143
(3d Cir.2002) (concluding that dismantled pellet gun which could be used as a
bludgeon is a "dangerous weapon" within the meaning of 1B1.1). Indeed,
when asked by this Court, defendant's counsel could point to no use for the sap
other than as a means of inflicting injury.2

26

The inquiry then turns to whether defendant "possessed" a dangerous weapon

for purposes of the enhancement provided for by U.S.S.G. 2E2.1(b)(1)(C). In
concluding that the defendant did not possess the weapon during the
commission of the crime, the district court confined its inquiry to the moment
when Sicurella was in the restaurant "threatening physical harm to the debtor."
We believe that this analysis was too narrow.

27

U.S.S.G. 2E2.1(b)(1)(C) instructs us to consider "all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant ... that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense" when
determining whether the dangerous weapons enhancement is applicable.
U.S.S.G. 1B1.3(a)(1). Guided by this language, we conclude that Sicurella's
driving to the restaurant with a sap in the car with the intent of collecting the
debt was a critical part of the offense conduct.

28

More than this, the fact that the sap was in the car as Sicurella drove to the
appointed meeting place to collect the debt, and was readily accessible in the
parked car during the meeting, strongly suggests that the sap could have been
used to extract the debt if Denaro had not been forthcoming. Accordingly,
although the sap was in the car at the time Sicurella met with Denaro, there is a
clear nexus between the presence of the sap in the car and the offense conduct.3

29

In determining that Sicurella "possessed" a "dangerous weapon" during the

offense of conviction, we take guidance from this Court's interpretation of the
term "possessed" as used in this Guideline. In United States v. Lanese, 890 F.2d
1284 (2d Cir.1989), we upheld the application of the Guideline 2E2.1(b)(1)(C)
enhancement for a defendant whose co-defendant possessed the weapon in
question. The Court held that Guideline 2E2.1(b)(1)(C) "is satisfied by mere
possession of the firearm during the crime, and does not require the particular

defendant to have been in possession." Id. at 1292. 4

30

In this case, the instrument in question, whose only use was to threaten
someone with bodily harm or to inflict physical harm, was located in the
defendant's car, which was parked in close proximity to the scene of the crime.
Were the sap in Sicurella's residence when he met Denaro, we might not
disagree with the district court's conclusion. The overwhelming evidence in this
case, however, is that Sicurella could have walked outside the restaurant and
retrieved the weapon if Denaro did not give him satisfaction (and the FBI did
not intervene). As "[d]ominion, control, and knowledge may be inferred by a
defendant's exclusive possession of the premises," United States v. Finley, 245
F.3d 199, 203 (2d Cir.2001), and Sicurella had exclusive possession of his car,
which contained the sap, we think it was error for the district court to conclude
that "[t]here is no evidence that ... Sicurella had possession of or ready access
to the sap or other weapon." To the contrary, even though Sicurella did not have
the weapon on his person, he possessed it while driving to the meeting an
act which was clearly relevant conduct undertaken in preparation for the
offense of conviction. See United States v. Bruce, 78 F.3d 1506, 1509-10 (10th
Cir.1996); U.S.S.G. 2E2.1(b)(1)(C).

31

In light of the foregoing, we hold that the defendant possessed a dangerous

weapon within the meaning of U.S.S.G. 2E2.1(b)(1)(C). Accordingly, it was
error for the district court to decline to impose the enhancement.

CONCLUSION
32

After considering all the arguments raised by the parties, we reverse the district
court's order declining to impose a sentence enhancement pursuant to U.S.S.G.
2E2.1(b)(1)(C) and remand the case to the district court for further
proceedings consistent with this opinion.

Notes:
*

The Honorable Damon J. Keith, Circuit Court Judge for the United States Court
of Appeals for the Sixth Circuit, sitting by designation

Merriam-Webster's Third New International Dictionary Unabridged,

<http://mwu.eb.com/mwu>. ("Bludgeon" is defined as "a short stick used as a
weapon usually having one thick, heavy, or loaded end."). The dictionary
definitions are included for informative purposes only; they are not dispositive
of the legal question of whether a particular weapon is dangerous within the

meaning of the Sentencing Guidelines.

2

Although defendant's counsel did make the ludicrous suggestion that the sap
could have been used for decorative purposes in the defendant's car

In this case the nexus between possession and the offense is obvious. The sap
has no utilitarian purpose beyond being a means of inflicting violence and pain.
We do not here consider the applicability of the Guideline in situations where
the nexus is less certain for example, if a loanshark were to drive to a
shakedown and the trunk of his car contained a toolbox with a hammer and
screwdriver

Multiple Guidelines call for an enhancement "if a dangerous weapon ... was
possessed."See, U.S.S.G. 2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B5.1, 2D1.1,
2D1.11, 2L1.1. We have the most experience applying the enhancement in drug
cases, where, pursuant to the applicable commentary, "[t]he adjustment should
be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense." U.S.S.G. 2D1.1 cmt. n. 3. We
decline to apply commentary from one section to another automatically,
however, see Application Instructions, U.S.S.G. 1B1.1 cmt. n. 2 ("Definitions
of terms also may appear in other sections. Such definitions are not designed
for general applicability; therefore, their applicability to sections other than
those expressly referenced must be determined on a case by case basis."), and
therefore we do not rely on cases interpreting 2D1.1(b)(1), which do not
require the defendant to have "personal possession, or even actual knowledge of
the weapon's presence," United States v. Stevens, 985 F.2d 1175, 1188 (2d
Cir.1993).