17-2013-cr
United States v. Thomas
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix 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.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 22nd day of May, two thousand eighteen.

Present:
               PETER W. HALL,
               SUSAN L. CARNEY,
                   Circuit Judges,
               JOHN G. KOELTL,
                   District Judge.*


United States of America,

              Appellee,

v.                                                                               17-2013-cr

Alfred Thomas, AKA Merc,

              Defendant-Appellant.


For Appellee:                         RAJIT S. DOSANJH, Assistant United States
                                      Attorney, for Grant C. Jaquith, United States
                                      Attorney for the Northern District of New York,
                                      Syracuse, NY.



       * John G. Koeltl, United Stated District Judge for the Southern District of New York, sitting
by designation.

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17-2013-cr
United States v. Thomas
For Defendant-Appellant:          DEVIN MCLAUGHLIN, Langrock Sperry & Wool,
                                  LLP, Middlebury, VT.

      Appeal from a judgment entered June 8, 2017, in the Northern District of

New York (Sannes, J.).

      UPON       DUE     CONSIDERATION,           IT     IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

      Alfred Thomas appeals from the judgment of the district court sentencing

him to 115 months imprisonment for being a felon in possession of ammunition in

violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). We assume the parties’

familiarity with the underlying facts, the procedural history, the arguments

presented on appeal, and the district court’s rulings.

      Thomas first asserts that the district court erred by departing upward

pursuant to § 5K2.6 of the United States Sentencing Guidelines because the court

based that upward departure on facts that the applicable Guidelines already

addressed in § 5K2.1(c)’s cross-reference provision. Because Thomas did not raise

this argument to the district court, we review it for plain error only. See United

States v. Inserra, 34 F.3d 83, 90 n.1 (2d Cir. 1994). Under that standard of review,

we will not remand for resentencing unless there is (1) an error (2) that is plain and

(3) that affects substantial rights. United States v. Sofsky, 287 F.3d 122, 125 n.2 (2d

Cir. 2002). Even if those conditions are met, we will exercise our discretion to

correct the error only if “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.




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United States v. Thomas
      “[D]istrict courts [are authorized] to depart in cases that feature aggravating

or mitigating circumstances of a kind or degree not adequately taken into

consideration by the [Sentencing] Commission.” Koon v. United States, 518 U.S. 81,

94 (1996). “The Commission provides considerable guidance as to the factors that

are apt or not apt to make a case atypical, by listing certain factors as either

encouraged or discouraged bases for departure.” Id. “Encouraged factors are those

the Commission has not been able to take into account fully in formulating the

guidelines,” id. (internal quotation marks omitted), and include the factor set forth

in § 5K2.6, which provides:

      If a weapon or dangerous instrumentality was used or possessed in the
      commission of the offense the court may increase the sentence above
      the authorized guideline range. The extent of the increase ordinarily
      should depend on the dangerousness of the weapon, the manner in
      which it was used, and the extent to which its use endangered others.
      The discharge of a firearm might warrant a substantial sentence
      increase.

U.S.S.G. § 5K2.6. “Even an encouraged factor is not always an appropriate basis for

departure, for on some occasions the applicable Guideline will have taken the

encouraged factor into account.” Koon, 518 U.S. at 94–95. “A court still may depart

on the basis of such a factor but only if it ‘is present to a degree substantially in

excess of that which ordinarily is involved in the offense.’”    Id. at 95 (quoting

U.S.S.G. § 5K2.0 (1995)).

      The district court did not plainly err by departing upward based on the fact

that Thomas possessed the ammunition while taking part in a drive-by shooting.

Application note 14(D) of Guidelines § 2K2.1 permits an upward departure in

circumstances such as Thomas’s, stating “[i]n a case in which the defendant used or
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17-2013-cr
United States v. Thomas
possessed a firearm or explosive to facilitate another firearms or explosives offense

. . . an upward departure under § 5K2.6 . . . may be warranted.” U.S.S.G. § 2K2.1

cmt. n.14(D). For that reason, there was no plain error here.

      Thomas also asserts an argument that he did raise before the district court at

sentencing: to wit, that the district court engaged in impermissible double counting

by departing upward under § 5K2.6 because § 2K2.1(b)(6)(B) fully accounted for the

kind of harm and seriousness of his conduct. We review this argument de novo. See

United States v. Palmer, 68 F.3d 52, 54 (2d Cir. 1995). “We have repeatedly held . . .

that a district court calculating a Guidelines sentence may apply multiple

Guidelines provisions based on the same underlying conduct where that is the

result clearly intended by Congress and the Sentencing Commission.”            United

States v. Maloney, 406 F.3d 149, 152 (2d Cir. 2005).            “Moreover, we have

consistently held that double counting is permissible in calculating a Guidelines

sentence where . . . each of the multiple Guidelines sections applicable to a single

act serves a distinct purpose or represents a discrete harm.” Id. at 153.

      As noted above, Guidelines § 2K2.1’s application note 14(D) permits

application of both § 2K2.1(b)(6)(B)’s four-level enhancement and the upward

departure provision under § 5K2.6. We read the application note to indicate that

Congress and the Sentencing Commission “clearly intended” to permit the district

court to apply both provisions, where appropriate, to reflect different aspects of the

same conduct. See Maloney, 406 F.3d at 152–53. Thus, separate from the general

conduct targeted by § 2K2.1(b)(6)(B)—simply possessing or using a firearm or



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17-2013-cr
United States v. Thomas
ammunition in connection with any felony offense—§ 5K2.6’s upward departure

provision targets firearms-related conduct especially likely to cause great harm-that

is, possessing or using a weapon in a particularly dangerous way in the commission

of an offense. For that reason, the district court did not engage in impermissible

double counting when it both applied § 2K2.1(b)(6)(B)’s four-level enhancement and

departed upward under § 5K2.6.

      We have considered Thomas’s remaining arguments and find them to be

without merit. The judgment of the district court is AFFIRMED.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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