Dеfendants-appellants Anthony and Michael Paccione (hereinafter “defendants” or “appellants”) appeal from the March 3, 1999 judgments of conviction аnd sentence of the United States District Court for the Eastern District of New York (Jacob Mishler, District Judge). Appellants were convicted, following a jury trial, of arson in violation of 18 U.S.C. § 844(i), conspiring to commit arson in violation of 18 U.S.C. § 371, and mail fraud in violation of 18 U.S.C. § 1341. The district court sentenced them to 87 months’ imprisonment and three years’ supervised release, imposed a $450 assessment, and ordered restitution in the amount of $2,744,306.
Appellants raise numerous claims of error on appeal. In a summary order entered simultaneously with this opinion, we dispose of all but one of these claims and resolve them against appellants. We consider here appellants’ remaining claim on appeal: that the district court erred in imposing a leadership enhancement against them pursuant to § 3Bl.l(a) of the United States Sentencing Guidelines (hereinafter “U.S.S.G.” or “Guidelines”). This aрpeal raises an issue we have never before addressed squarely: whether a defendant himself may be included among the “five or more participants” in a criminаl activity for purposes of a leadership role enhancement under § 3Bl.l(a) of the Guidelines. We hold that a defendant can be included, and accordingly affirm the distriсt court’s decision to impose an enhancement against both defendants here.
BACKGROUND
The facts of this case are set forth somewhat more fully in the accompаnying order. Here we summarize only those facts pertinent to the discussion of the leadership enhancement. The government argued, and the jury apparently believеd, that the Pacciones arranged for their financially unsuccessful nightclub, Levit-town Events, Inc., to be burned down so that they could collect insurance money and pay off thеir debts. Michael Allocca, an employee at another store in the strip mall in which Levittown Events was located, testified that he helped move equipment and other materials from the club to the basement of the store in which he worked in the month prior to the fire on orders from his boss, Peter Vario. He
DISCUSSION
U.S.S.G. § 3Bl.l(a) mandates a four-level enhancement in offense level for a defendant who is “an organizer or leadеr of criminal activity that involved five or more participants or was otherwise extensive.” “Whether we consider defendant a leader depends upon the degree of discretion exercised by him, the nature and degree of his participation in planning or organizing the offense, and the degree of control and authority exercised over the other members of the conspiracy.”
United States v. Beaulieau,
Here, there was clear support for the district court’s conclusion that the Pacciones were organizers or leaders of a сriminal activity for purposes of § 3B1.1. The evidence suggested that the Pacciones planned the arson and enlisted Vario’s assistance in moving valuables out of the сlub. Moreover, the district court credited Allocca’s proposed testimony that at least two other individuals participated directly in the arson, and found that whoever set the fire must have had the Pacciones’ permission in order to gain access to the club. Thus, the district court did not clearly err in determining that defendants played а crucial role in the planning, coordination, and implementation of a criminal scheme involving at least the Pacciones themselves, Vario, Vincuillo, and Carpentieri.
Nevertheless, in order to assess the appropriateness of the leadership enhancements here, we must decide whether the evidence permitted a finding that the criminal activity “involved five or more participants.” In so doing, we must determine whether, for each defendant, it is proper to include the defendant himsеlf when counting the number of knowing participants in the criminal activity. This question has never been squarely addressed in this circuit, though we have assumed variously that a defendant cоuld be included,
see, e.g., United States v. Napoli,
We hold that a defendant may properly be included as a participant when determining whether the criminal activity “involved five or more participаnts” for purposes of a leadership role enhancement under § 3B1.1. First, the plain text of the Guideline supports this conclusion. The Guideline uses language — “five or more participants” — that does not in any way distinguish the defendant subject to the enhancement from the other individuals involved in the criminal scheme.
Second, the language of the Aрplication Notes to § 3B1.1 suggests that a defendant should be viewed as a “participant” for purposes of this section. Application Note 1 defines a “partiсipant” as “a person who is criminally responsible for the commission of the offense,” a definition that plainly includes the defendant. Application Note 2 talks abоut a defendant’s actions with respect to “other participants” or “another participant,” again indicating that the defendant himself should be considered a “participant.”
We note that all of the circuits that have addressed the question have decided that a defendant may be included when determining whether there were fivе or more participants in the criminal activity in question.
See, e.g., United States v. Hardwell,
Applying this rule in the сase before us, we conclude that the district court did not err in imposing a leadership role enhancement. Anthony and Michael Paccione could eaсh reasonably be viewed as a leader or organizer of a conspiracy including at least five participants: the defendants themselves, Vario, and the two individuals identified as direct participants in the arson.
CONCLUSION
For the foregoing reasons, and the reasons expressed in the summary order entered contemporaneously with this оpinion, we affirm the district court’s judgments of conviction and sentence.
Notes
. Because Allocca was never alleged to be a co-conspirator by the government, we do not consider here the nature of his participation in the scheme.