17-2013-cr 

United States v. Thomas 

1 

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. 

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. 

17-2013-cr 
17-2013-cr 

United States v. Thomas 

2 

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. 
17-2013-cr 

United States v. Thomas 

3 

“[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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United States v. Thomas 

4 

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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United States v. Thomas 

5 

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