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

RULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PE RMI TTE D AND IS GOV ERN ED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AN D T HIS CO URT ’ S L OCA L RULE 32.1.1. W HEN CI TIN G ASU MMA RY ORD ER IN A D OCU MEN T F ILE D W ITH TH IS COU RT , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PA RTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 25 262 

### 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 to3 

### 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 argument5 

### 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