United States v. Vincent Scognamiglio ( 2011 )

[DO NOT PUBLISH]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.
2
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
3
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.
4