                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 13-4713


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JASON S. SWISHER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:13-cr-00002-GMG-DJJ-2)


Submitted:   February 25, 2014                Decided:     March 10, 2014


Before DUNCAN    and   FLOYD,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William T. Rice, Martinsburg, West Virginia, for Appellant.
Robert Hugh McWilliams, Jr., Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jason Swisher appeals the thirty-three-month sentence

imposed by the district court after he pled guilty to conspiracy

to possess with intent to distribute and to distribute heroin,

in violation of 21 U.S.C. § 846 (2012).                        Swisher’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that he has found no meritorious grounds for

appeal    but     questioning        whether        the   district     court       erred   in

calculating Swisher’s total offense level under the Guidelines.

Swisher was informed of his right to file a pro se supplemental

brief but has not done so.             We affirm.

            We review a sentence for reasonableness, applying “a

deferential       abuse-of-discretion               standard.”       Gall      v.     United

States, 552 U.S. 38, 41 (2007).                      This review entails appellate

consideration          of     both     the          procedural       and      substantive

reasonableness of the sentence.                      Id. at 51.         In determining

procedural      reasonableness,           we       consider,   among       other     things,

whether   the     district        court    properly       calculated        the     advisory

Guidelines range.           Id.

            Swisher’s counsel first questions whether the district

court erred by imposing a two-level enhancement for possession

of a firearm under U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(b)(1) (2012), based on testimony from the confidential

informant    at    a   co-defendant’s          sentencing        hearing.          Appellate

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courts    have    generally      permitted      a    sentencing     court   to   use

testimony from other proceedings as long as a defendant has an

opportunity to rebut the evidence.                  United States v. Blackwell,

49    F.3d    1232,    1236-37    (7th    Cir.      1995)   (collecting     cases).

Because the presentence report set forth essentially the same

facts    to    which    the     informant      testified       at   Swisher’s    co-

defendant’s sentencing hearing and Swisher had an opportunity to

object to those facts, the district court did not err in relying

on the informant’s testimony to impose the firearm enhancement.

See USSG § 2D1.1 cmt. n.11(A); United States v. Slade, 631 F.3d

185, 189 (4th Cir. 2011) (discussing firearm enhancement); see

also United States v. Alexander, 714 F.3d 1085, 1092 (8th Cir.)

(holding “that the trade of a firearm for drugs warrants [the

§ 2D1.1(b)(1)] enhancement”) (internal quotation marks omitted),

cert. denied, 134 S. Ct. 347 (2013).

              Swisher also challenges the district court’s denial of

an acceptance of responsibility adjustment under USSG § 3E1.1.

In considering whether a defendant has accepted responsibility,

a sentencing court may consider whether the defendant terminated

his   criminal    conduct.        USSG    §    3E1.1    cmt.   n.1(b).      Because

Swisher consumed alcohol and possessed a controlled substance

while on bond awaiting sentencing and therefore did not cease

his criminal conduct, we conclude that the district court did

not   clearly    err    in    denying    the   acceptance      of   responsibility

                                          3
adjustment.     See United States v. Jeffery, 631 F.3d 669, 678

(4th Cir. 2011) (stating standard of review).

            In accordance with Anders, we have reviewed the entire

record for any meritorious grounds for appeal and have found

none.     Accordingly, we affirm the district court’s judgment.

This court requires that counsel inform Swisher, in writing, of

his right to petition the Supreme Court of the United States for

further review.        If Swisher requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel   may   move    in    this   court   for   leave    to     withdraw     from

representation.      Counsel’s motion must state that a copy thereof

was served on Swisher.          We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before     this    court   and   argument      would    not   aid    the

decisional process.

                                                                          AFFIRMED




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