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Federal sentencing enhancements for permanent or life-threatening bodily injury can include some emotional and psychological injuries, the 2nd U.S. Circuit Court of Appeals has found. Ruling in a case involving a failed organized crime murder attempt, the 2nd Circuit said a four-level sentencing enhancement can be applied if it can be shown the victim was harmed to such a degree that he or she suffered from a loss or “substantial impairment of a mental faculty” under the federal sentencing guidelines. The decision in United States v. Spinelli concerned the sentence given defendant Robert Spinelli, who was convicted of conspiracy to murder in aid of racketeering and other charges in connection with the 1992 shooting of a Brooklyn woman. Patricia Capozzalo was shot twice in her car outside her home by a member of the Luchese family who was allegedly retaliating for her brother’s cooperation with the government. The gun began disintegrating in mid-attack and the bullets failed to inflict serious harm, with Capozzalo receiving only a few sutures for a minor wound behind her ear. The driver of the second of two getaway cars used in the shooting was Robert Spinelli, who was indicted, tried and convicted in the case along with his brother, Michael Spinelli, who helped organize and execute the attack. At sentencing, Eastern District of New York Judge Raymond Dearie was told that Capozzalo, who had been forced to enter the witness protection program, suffered from post-traumatic stress disorder. Considering the impact that the shooting and its aftermath had on Capozzalo, Dearie said Spinelli would receive a four-level enhancement for a crime involving a “permanent or life-threatening bodily injury” under the sentencing guidelines. While the enhancement took Spinelli’s sentence up to the range of 210 months to 262 months, Dearie ultimately departed downward and sentenced him to 10 years in prison because his role in the attempted murder was relatively minor, Spinelli had an I.Q. of 63, and was under the influence of his brother, the judge determined. Spinelli appealed to the 2nd Circuit, where the issue was the definition of a “permanent or life-threatening bodily injury,” under � 2A2.1(b)(1) of the guidelines. Judge Guido Calabresi said the guidelines commentary defines such an injury as one “involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ or mental faculty that is likely to be permanent.” He noted that Dearie first focused on the permanent nature of Capozzalo’s emotional injury, but on reconsideration had emphasized “the life-threatening circumstances to which Capozzalo was subjected and emphasized that sheer good fortune prevented her death.” While the government argued the enhancement was appropriate under either theory, Spinelli contended that a two-level enhancement for “serious bodily injury” should have been applied instead because the victim escaped with minor injuries. But Calabresi said: “The threshold question presented by this case is whether the sentencing enhancements at issue should depend solely on the results of the criminal act, or, alternatively, at least in some extreme and unusual situations, can reflect the defendant’s conduct, the circumstances surrounding the crime, or the nature of the crime attempted.” The 2nd Circuit, he said, agreed with at least two circuits that the injury to the victim is the “sole determinant of whether these enhancements are justified.” MENTAL FACULTY Turning to the main issue, Calabresi said precedents from other circuits “correctly suggest that severe post-traumatic stress disorder and its psychological manifestations may constitute an ‘impairment of the function of a … mental faculty’ in certain circumstances.” On the facts before the court, Calabresi said, it seemed possible Capozzalo’s shooting may have led to lasting psychological or emotional effects that are “likely to be permanent” as considered by the guidelines. “Given that, in applying this enhancement, we look not to intentions or circumstances, but to outcomes, defendants must take the bitter with the sweet,” he said. “Thus if Spinelli can benefit from Capozzalo’s miraculous avoidance of serious physical injury despite the fact that she was shot several times at point-blank range, Spinelli cannot avoid the psychological repercussions that have arisen from the shooting itself.” The court remanded the case for Dearie to make factual findings “sufficient to establish impairment of a mental faculty” and support the enhancement. Judges Roger J. Miner and Chester J. Straub joined in the opinion. Assistant U.S. Attorneys Daniel S. Dorsky and Jo Ann Navickas represented the government. Gail E. Laser represented Spinelli.

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