         09-3080-cr
         USA v. Wimble


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 21 st day of July, two thousand and                                    ten.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge. *
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-3080-cr
19
20
21       RICHARD WIMBLE,
22
23                                       Defendant-Appellant.
24
25
26



                 *
                 The Honorable Richard W. Goldberg, Judge, United States Court of
         International Trade, sitting by designation.


                                                            1
 1   FOR APPELLANT:     E. M. ALLEN, Stetler, Allen & Kampmann,
 2                      Burlington, VT.
 3
 4   FOR APPELLEE:      TIMOTHY C. DOHERTY, Jr., Assistant United
 5                      States Attorney (Gregory L. Waples, on
 6                      the brief) for Tristam J. Coffin, United
 7                      States Attorney for the District of
 8                      Vermont, Burlington, VT.
 9
10        Appeal from the United States District Court for the
11   District of Vermont (Sessions, C.J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the district court be

15   AFFIRMED.

16       Richard Wimble (“appellant”) appeals from a judgment of

17   the United States District Court for the District of Vermont

18   (Sessions, C.J.), convicting him following a guilty plea to

19   possessing a firearm while being an unlawful user of a

20   controlled substance in violation of 18 U.S.C. § 922(g)(3).

21   Appellant was sentenced principally to thirty months’

22   imprisonment to be followed by a supervised release term of

23   two years.   We assume the parties’ familiarity with the

24   underlying facts, the procedural history, and the issues

25   presented for review.

26       First, appellant contends that the district court erred

27   in its Guidelines calculation by denying him a three level

28   reduction for acceptance of responsibility pursuant to


                                   2
1    U.S.S.G. § 3E1.1.    Specifically, he argues that the district

2    court’s reliance on his post-plea misconduct was

3    insufficient to justify the court’s refusal to extend the

4    reduction.   That argument fails.     Because “[t]he sentencing

5    judge is in a unique position to evaluate a defendant’s

6    acceptance of responsibility,” his or her determination in

7    that regard is entitled to “great deference on review.”

8    United States v. Ortiz, 218 F.3d 107, 109 (2d Cir. 2000)

9    (quoting U.S.S.G. § 3E1.1, comment n.5).      Here, the

10   sentencing judge was influenced in part by the fact that

11   appellant was involved in multiple crimes subsequent to his

12   guilty plea – including accessory after the fact to

13   attempted assault and robbery.      We have long recognized that

14   “[o]ne factor that the sentencing court may take into

15   account in deciding whether a defendant has accepted

16   responsibility is whether he has voluntarily terminated all

17   criminal conduct.”    United States v. Fernandez, 127 F.3d

18   277, 285 (2d Cir. 1997).    Because the lower court’s

19   determination that appellant did not accept responsibility

20   for his actions was not “without foundation,” it will not be

21   disturbed.   See Ortiz, 218 F.3d at 108 (internal quotation

22   marks omitted).


                                    3
1          Next, appellant argues that the district court

2    improperly imposed a four-level upward adjustment pursuant

3    to U.S.S.G. § 2K2.1(b)(6), 1 based on the appellant’s

4    transfer of a firearm in exchange for narcotics.                 That

5    argument is also meritless.          Because the firearm’s presence

6    was not “merely coincidental” to the transfer of the firearm

7    in exchange for narcotics, a separate felony, 18 U.S.C. §

8    924(c), the requirement for imposition of the enhancement

9    was satisfied.      See United States v. Shepardson, 196 F.3d

10   306, 314-15 (2d Cir. 1999).          The fact that the firearm was

11   used as collateral in a bartering transaction instead of as

12   a weapon does not mean that the adjustment was improper.

13   C.f. United States v. Smythe, 363 F.3d 127, 129-30 (2d Cir.

14   2004).

15         Finally, appellant maintains that the district court’s

16   reliance on his post-plea misconduct as a basis for denying

17   him a reduction for acceptance of responsibility, as well as

18   for refusing to extend a variance pursuant to 18 U.S.C. §

19   3553 and for denying a downward departure, constituted

20   impermissible “double” or “triple counting.”               That argument


           1
             This provision provides for an adjustment if the “defendant used or
     possessed any firearm ... in connection with another felony offense; or
     possessed or transferred any firearm ... with ... reason to believe that it
     would be used or possessed in connection with another felony offense.”
     U.S.S.G. § 2K2.1(b)(6).


                                           4
1    misses the mark.   “After Booker, assuming the sentence is

2    not based on a misunderstanding of the Guidelines, we will

3    vacate a sentence only if it is unreasonable.”     United

4    States v. Reyes, 557 F.3d 84, 88 (2d Cir. 2009).     To the

5    extent the appellant suggests that a sentencing court may

6    not consider the same factors – such as a defendant’s

7    criminal conduct, his history and character, and other

8    relevant circumstances – through the exercise of its

9    discretion under § 3553(a) that it considered elsewhere in

10   the Guidelines calculation, we firmly disagree.     “We have

11   repeatedly held ... that a district court calculating a

12   Guidelines sentence may apply multiple Guidelines provisions

13   based on the same underlying conduct where that is the

14   result clearly intended by Congress and the Sentencing

15   Commission.”   United States v. Maloney, 406 F.3d 149, 152

16   (2d Cir. 2005).

17       We have considered the appellant’s remaining arguments

18   and find them to be without merit.   For the foregoing

19   reasons, the judgment of the district court is hereby

20   AFFIRMED.

21
22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25
26



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