United States v. Wimble ( 2010 )

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
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