The Honorable Richard W. Goldberg, Judge, United States Court of *

International Trade, sitting by designation.

1

09-3080-cr

USA v. Wimble

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.

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 day of July, two thousand and ten. st

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
2

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
3

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).
 This provision provides for an adjustment if the “defendant used or 1

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 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), based on the appellant’s 1

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
5

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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