United States v. Defelice , 576 F. App'x 56 ( 2014 )

13-927-cv
United States v. Defelice
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 25th day of August, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- No. 13-927-cv
ALEXANDER DEFELICE,
Defendant-Appellant.
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FOR DEFENDANT-APPELLANT: Bethany L. Phillips, Butler Norris &
Gold, Hartford, CT.
FOR APPELLEE: Henry K. Kopel, Sandra S. Glover,
Assistant United States Attorneys for
Deirdre M. Daly, United States
Attorney for the District of
Connecticut, New Haven, CT.
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Appeal from the May 9, 2011 judgment and the May 11, 2011 amended judgment of the
United States District Court for the District of Connecticut (Janet C. Hall, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the District Court be AFFIRMED.
Defendant Alexander Defelice appeals from a May 9, 2011 judgment and a May 11, 2011
amended judgment sentencing him principally to a prison term of 120 months following a jury trial
and a subsequent plea of guilty. On appeal, Defelice argues that the District Court erred when it: (1)
denied him a sentencing adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1; and (2)
applied a four-level enhancement for trafficking in firearms under U.S.S.G. § 2K2.1(b)(5). We
assume familiarity with the factual and procedural history of the case and the issues on appeal.
In February 2010, Defelice was indicted based on allegations that he arranged and conducted
illegal sales of firearms and homemade explosive grenades to a cooperating witness, a convicted
felon and a member of a white supremacist group known as the Imperial Klans of America, who
purported to be purchasing arms on behalf of that group. Defelice was tried, and the jury
convicted on: two counts of selling firearms to a convicted felon, 18 U.S.C. § 922(d); one count of
conspiring to sell firearms to a convicted felon and to sell unregistered explosive grenades, 18 U.S.C.
§ 371; and one count each of making and selling unregistered explosive grenades, 26 U.S.C. § 5861(f)
and (e). Defelice’s sole defense at trial was entrapment. Following his conviction, Defelice pled
guilty to two remaining counts of felon in possession of a firearm, 18 U.S.C. § 922(g), which had
been bifurcated for purposes of trial.
At sentencing on all seven counts, the District Court calculated a guidelines range of 151-
188 months and imposed a below-guidelines sentence of 120 months. The District Court applied a
four-level enhancement for “engag[ing] in the trafficking of firearms,” U.S.S.G. § 2K2.1(b)(5), and
declined to grant a two-level reduction for acceptance of responsibility under U.S.S.G § 3E1.1.
Defelice objected to both decisions at sentencing.
DISCUSSION
On appeal, we review sentences for “reasonableness,” which is akin to review for “abuse of
discretion.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013); see also United States v. Leslie, 658
F.3d 140, 142 (2d Cir. 2011) (explaining that, in reviewing a sentence for reasonableness, “we
consider whether the sentencing judge exceeded the bounds of allowable discretion, committed an
error of law in the course of exercising its discretion, or made a clearly erroneous finding of fact”
(internal quotation marks omitted)).
A defendant who elects to proceed to trial on an entrapment defense is rarely entitled to a
reduction for acceptance of responsibility. See United States v. Taylor, 475 F.3d 65, 69 (2d Cir. 2007);
see also U.S.S.G. § 3E1.1, cmt. 2 (noting that there are “rare situations” in which a defendant may
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“clearly demonstrate an acceptance of responsibility . . . even though he exercises his constitutional
right to a trial”). In the absence of any indication that Defelice was particularly remorseful or
provided significant post-trial assistance to the government, the District Court was well within its
discretion in concluding that this was not one of those “rare circumstances” in which the reduction
should be granted. See App’x 109.
The four-level sentencing enhancement for “engag[ing] in trafficking of firearms” is
appropriate, inter alia, where the defendant “transferred, or otherwise disposed of two or more
firearms to another individual” with the knowledge, or with reason to know, that either: (1) the
individual’s “possession or receipt of the firearm would be unlawful;” or (2) the individual “intended
to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1(b)(5), cmt. 13. Although the District
Court relied on the first basis, we can affirm if we find that either ground was supported by the
record. See United States v. Simard, 731 F.3d 156, 161 (2d Cir. 2013) (“[W]e are free to affirm a
decision on any grounds supported in the record, even if it is not one on which the trial court
relied.”). The record reveals that Defelice: (1) was concerned with the weapons being untraceable as
a general matter, and to him in particular; (2) knew that the weapons were going to a white
supremacist group, which he likened to the Hells Angels; and (3) proposed selling the cooperating
witness weapons that could be used to “take out a f-king car, a f-king house” and could not be sold
legally. Appellees’ Br. at 51-52. In the circumstances presented, the District Court could have
appropriately concluded that Defelice knew or should have known that the recipient of the firearms
“intended to use or dispose of [them] unlawfully.” Accordingly, application of the four-level
enhancement was appropriate.
CONCLUSION
We have considered all of Defelice’s arguments and find them to be without merit. For the
reasons set out above we AFFIRM the May 9, 2011 judgment and the May 11, 2011 amended
judgment of the District Court.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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