UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4377

UNITED STATES OF AMERICA

 Plaintiff - Appellee

v.

SALVATORE PIZZUTO

 Defendant - Appellant

Appeal from the United States District Court for the District of South Carolina at Florence. 

Sherri A. Lydon, District Judge. (4:20-cr-00683-SAL-1)

Submitted: October 3, 2022 Decided: November 3, 2022

Before WILKINSON and THACKER, Circuit Judges, and TRAXLER, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Kimberly H. Albro, Assistant Federal Public Defender, OFFICE OF THE 

FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Cory F. 

Ellis, United States Attorney, Columbia, South Carolina, Lauren L. Hummel, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, 

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 1 of 10
2

PER CURIAM:

Salvatore Pizzuto pleaded guilty to a felon in possession charge in violation of 18 

U.S.C. § 922(g). The district court sentenced him to 63 months in prison, the upper limit 

of his Sentencing Guidelines range. On appeal, he argues that this sentence was both 

procedurally and substantively unreasonable. For the following reasons, we affirm. 

I.

In October 2020, Pizzuto, a Connecticut resident and convicted felon, drove to 

South Carolina with another Connecticut resident to buy firearms. J.A. 103–04. Testimony 

reveals that the men also brought a malfunctioning rifle to South Carolina to repair it. Id. 

They met up with three other individuals in Florence, South Carolina, where Pizzuto gave 

one of them cash to make a straw purchase of six guns. J.A. 104. An ATF officer observed 

Pizzuto and the group exit a gun store with a black duffle bag, which they placed in the 

trunk of a car with Connecticut plates. J.A. 100.

After the gun purchases, Pizzuto and his confederate drove away, with Pizzuto in 

the passenger seat. J.A. 103. A police officer observed several traffic violations and tried 

to pull the car over, but the car sped up to avoid apprehension and eventually lost control, 

resulting in a collision that caused the death of another driver. J.A. 100. The car then 

crashed into a ditch. J.A. 101. Pizzuto took off running, so the officers deployed a K-9 to 

stop him. Id. Officers then seized a gun from his front pocket. Id. A search of the car 

revealed a total of ten weapons, some high-capacity magazines, and illicit drugs. J.A. 101–

02. Six of the weapons were identified as the ones just purchased from the gun store. J.A. 

52. Officers found an AR9 9mm rifle and a fifty-round 9mm drum magazine in the trunk. 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 2 of 10
3

J.A. 102. In the passenger’s floorboard, where Pizzuto had been sitting, deputies found a 

Taurus 9mm pistol with a laser and ammunition. Id.

Pizzuto was charged with one count of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g), to which he later pleaded guilty. J.A. 13–14, 35. His 

Presentence Investigation Report (PSR) calculated a base offense level of 20 under 

U.S.S.G. § 2K2.1(a)(4)(B), as Pizzuto was a prohibited person and the offense involved a 

semiautomatic firearm capable of accepting a large-capacity magazine. J.A. 109. The PSR 

also provided a four-level sentence enhancement based on the offense involving 8 to 24 

firearms under U.S.S.G. § 2K2.1(b)(1)(B). Id.

During sentencing, Pizzuto objected to the four-level enhancement. J.A. 51. He 

argued that there was not sufficient evidence connecting him to an eighth weapon. J.A. 52–

56. The district court overruled this objection, noting that “an eighth gun was located in 

the front passenger floorboard where Pizzuto was seated” and “further, a total of ten 

firearms were recovered from the vehicle.” J.A. 66–67. The district court adopted the PSR 

facts, and the Guidelines range of 51–63 months. J.A. 67–68. The court sentenced Pizzuto 

to 63 months in prison. J.A. 78. 

II.

Pizzuto appeals, arguing that his sentence was both procedurally and substantively 

unreasonable. He asserts three procedural errors. First, he argues that the four-level 

enhancement for an offense involving 8 to 24 guns was improper since the government did 

not prove by a preponderance of the evidence that the eighth gun could be attributed to 

him. Second, he argues for the first time on appeal that his base offense level was 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 3 of 10
4

improperly increased from 14 to 20 under U.S.S.G. § 2K2.1(a)(4)(B) because there was no 

connection made between Pizzuto and the semiautomatic firearm justifying this increase. 

Third, he argues that the district court cited incorrect findings in support of the sentence 

and that the court failed to consider his arguments for a lower sentence. For the following 

reasons, we disagree. 

We review a sentencing decision for procedural and substantive reasonableness, 

applying a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 

51–52 (2007). In procedural reasonableness review, we ensure that the district court 

committed no significant procedural error, such as miscalculating the Sentencing 

Guidelines range, inadequately considering the 18 U.S.C. § 3553(a) factors, insufficiently 

explaining the sentence, relying on clearly erroneous facts, or failing to address “the 

parties’ nonfrivolous arguments in favor of a particular sentence.” United States v. 

Provance, 944 F.3d 213, 218 (4th Cir. 2019) (internal quotation marks omitted); see also 

Gall, 552 U.S. at 51. In reviewing the district court’s imposition of a sentencing 

enhancement and its calculation of the Guidelines range, “we review its legal conclusions 

de novo and its factual findings for clear error,” finding clear error only if “on the entire 

evidence,” we are “left with the definite and firm conviction that a mistake has been 

committed.” United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (internal quotation 

marks omitted). Facts supporting a sentencing enhancement must be proven by a 

preponderance of the evidence. United States v. Andrews, 808 F.3d 964, 968 (4th Cir. 

2015). 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 4 of 10
5

A.

We begin with Pizzuto’s argument about the sentencing enhancement under 

U.S.S.G. § 2K2.1(b)(1)(B). That section provides for a four-level enhancement when an 

offense involves 8 to 24 firearms. The commentary to this section notes that a court should 

“count only those firearms that were unlawfully sought to be obtained, unlawfully 

possessed, or unlawfully distributed.” U.S.S.G. § 2K2.1, cmt. n. 5. We note that in cases 

of jointly undertaken criminal activity, such as the instant case, specific offense 

characteristics are determined by “all acts and omissions of others that were (i) within the 

scope of the jointly undertaken activity; (ii) in furtherance of that criminal activity; and (iii) 

reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 

1B1.3(a)(1)(B). We also note that Pizzuto does not contest that he was a prohibited person 

and expressly stipulates that he unlawfully possessed seven guns. See J.A. 52.

The record confirms that Pizzuto possessed at least one more gun to warrant the 

four-level enhancement. Possession of contraband “may be actual or constructive, and it 

may be sole or joint.” United States v. Moody, 2 F.4th 180, 189 (4th Cir. 2021) (internal 

quotation marks omitted). The government can prove constructive possession by showing 

that Pizzuto “intentionally exercised dominion and control over the firearm, or had the 

power and the intention to exercise dominion and control over the firearm.” United States 

v. Scott, 424 F.3d 431, 436 (4th Cir. 2005). “[C]onstructive possession may be established 

by either circumstantial or direct evidence,” and “a fact finder may properly consider the 

totality of the circumstances surrounding the defendant’s arrest and his alleged 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 5 of 10
6

possession.” United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010) (internal quotation 

marks and citations omitted). 

Here, the record shows that there was a 9 mm pistol found in the front passenger 

floorboard of the car where Pizzuto was sitting. It also shows that Pizzuto came from 

Connecticut to South Carolina to conduct a straw purchase of firearms he could not legally 

possess and brought an AR9 rifle in tow. It is not unreasonable to suggest that Pizzuto 

brought other guns with him on the trip, and thus had knowledge of and access to this item. 

See Moody, 2 F.4th at 193 (noting that proximity to a firearm is a relevant consideration 

for constructive possession). The district court thus did not clearly err in inferring that 

Pizzuto both knew of and had access to the 9 mm pistol in the front passenger floorboard 

as the eighth gun. 

The enhancement can also be independently supported by the AR9 rifle. 

“[I]rrespective of one stated basis for imposition of the enhancement, we can affirm [a] 

sentence on the basis of any conduct [in the record] that independently and properly should 

result in an increase in the offense level by virtue of the enhancement.” United States v. 

Garnett, 243 F.3d 824, 830 (4th Cir. 2001) (internal quotation marks omitted) (third 

alteration in original). The facts show that Pizzuto and another individual brought this rifle 

down from Connecticut to be repaired. This supports an inference that the defendant had 

knowledge of, and access to, the item. The district court also acknowledged this possibility 

when it noted that “a total of ten firearms were recovered from the vehicle” while 

overruling Pizzuto’s initial objection to this enhancement. See J.A. 65. We thus conclude 

this enhancement was proper. 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 6 of 10
7

B.

We also reject Pizzuto’s new challenge to his base offense level under U.S.S.G. § 

2K2.1(a)(4)(B). Pizzuto stipulates that this argument is reviewed under plain error because 

he did not previously object to it. “To prevail on plain error review, an appellant must show 

(1) that the district court erred, (2) that the error was plain, and (3) that the error affected 

his substantial rights.” United States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018). Even 

with those prongs satisfied, a court of appeals should only “exercise its discretion to correct 

the forfeited error if the error seriously affects the fairness, integrity, or public reputation 

of judicial proceedings.” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) 

(internal quotation marks omitted).

Section 2K2.1(a)(4)(B) provides for a base offense level of 20 if the offense of 

conviction involved a prohibited person and a semiautomatic firearm capable of accepting 

a large-capacity magazine, which is defined as a firearm with either an attached magazine 

“that could accept more than 15 rounds of ammunition.” or “a magazine or similar device 

that could accept more than 15 rounds of ammunition was in close proximity to the 

firearm.” U.S.S.G. § 2K2.1, cmt. n. 2. The PSR applied this base offense level for the AR9 

rifle and 50-round drum magazine found in the trunk of the vehicle and the extended 9mm 

magazine loaded with 25 rounds found in the front passenger floorboard. Pizzuto fails to 

show any plain error on this front. As shown in Section A, he constructively possessed the 

AR9, and thus the base offense level was proper. 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 7 of 10
8

C.

Finally, we find that the district court did not commit any other procedural error 

during Pizzuto’s sentencing. The court correctly calculated the advisory Guidelines range, 

thoroughly explained the selected sentence, and adequately considered the sentencing 

factors under 18 U.S.C. § 3553(a). “[A] court is not required to discuss each § 3553(a) 

factor extensively, but need only provide a rationale tailored to the particular case.” United 

States v. Allmendinger, 706 F.3d 330, 343 (4th Cir. 2013) (internal quotation marks 

omitted). Moreover, our review of the record convinces us that the district court did not 

consider clearly erroneous facts in sentencing Pizzuto. Although the court did mention the

bystander fatality when considering certain § 3553(a) factors, it did not attribute that death 

to Pizzuto. Instead, it considered the fatality under18 U.S.C. §§ 3553(a)(1)–(2), explicitly 

noting that even though Pizzuto was not responsible for the death, it was an example of 

what could continue to happen if Pizzuto was not adequately deterred from criminal 

behavior in the future. See J.A. 81, 84. 

The court also stated that it considered Pizzuto’s arguments for a downward 

variance sentence or a lower sentence within the Guidelines range. See J.A. 83. It expressly 

rejected that request by stating that “[w]hile perhaps a good argument can even be made 

for an upward variance in this case to reflect the seriousness of the offense and accomplish 

the other sentencing purposes, ultimately I believe the sentence of 63 months is sufficient 

but not greater than necessary to comply with sentencing purposes.” Id. (emphasis added). 

We conclude that the district court “considered the parties’ arguments and [gave] a 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 8 of 10
9

reasoned basis for exercising [its] own legal decisionmaking authority,” and thus no 

procedural error lies. Rita v. United States, 551 U.S. 338, 356 (2007).

III.

Pizzuto also argues that his sentence was substantively unreasonable because the 

court imposed the sentence based on several factual inaccuracies and relied on the 

bystander fatality caused by the car chase as support for its analysis of the 18 U.S.C. § 

3553(a) factors. After finding no procedural error, this court considers the substantive 

reasonableness of a sentence, evaluating “the totality of the circumstances to determine 

whether the sentencing court abused its discretion in concluding that the sentence it chose 

satisfied the standards set forth in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 

(4th Cir. 2020). Any sentence within a properly calculated Guidelines range is 

presumptively substantively reasonable, and the defendant bears the burden of 

demonstrating the sentence is unreasonable when measured against the § 3553(a) factors. 

United States v. White, 810 F.3d 212, 230 (4th Cir. 2016). 

Pizzuto cannot make such a showing here. As the district court noted, “one of...the 

most telling things in this case is that [Pizzuto] ha[d’]nt previously served any real time” 

despite having a number of criminal convictions, showing an upper Guidelines sentence 

was necessary for future deterrence. J.A. 78. Moreover, the court correctly found that 

Pizzuto “greatly benefited from” the fact that “two of [his previous] convictions involved 

Alford pleas for which the [Probation Office] could not assign points for purposes of 

placing the defendant in the appropriate criminal history category.” J.A. 81–82. And 

finally, this offense involved “very serious” conduct involving interstate travel for the straw 

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 9 of 10
10

purchase of weapons. J.A. 81. Based on the record, we believe that the district court was 

substantively reasonable in finding Pizzuto’s sentence “sufficient, but not greater than 

necessary,” to satisfy the goals of sentencing. See 18 U.S.C. § 3553(a). 

IV.

For the foregoing reasons, the district court is affirmed. 

AFFIRMED.

USCA4 Appeal: 21-4377 Doc: 31 Filed: 11/03/2022 Pg: 10 of 10