UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON S. SWISHER,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. Gina M. Groh, 

District Judge. (3:13-cr-00002-GMG-DJJ-2)

Submitted: February 25, 2014 Decided: March 10, 2014

Before DUNCAN and FLOYD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

William T. Rice, Martinsburg, West Virginia, for Appellant. 

Robert Hugh McWilliams, Jr., Assistant United States Attorney, 

Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jason Swisher appeals the thirty-three-month sentence 

imposed by the district court after he pled guilty to conspiracy 

to possess with intent to distribute and to distribute heroin, 

in violation of 21 U.S.C. § 846 (2012). Swisher’s counsel has 

filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), stating that he has found no meritorious grounds for 

appeal but questioning whether the district court erred in 

calculating Swisher’s total offense level under the Guidelines. 

Swisher was informed of his right to file a pro se supplemental 

brief but has not done so. We affirm.

We review a sentence for reasonableness, applying “a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41 (2007). This review entails appellate 

consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In determining 

procedural reasonableness, we consider, among other things,

whether the district court properly calculated the advisory 

Guidelines range. Id.

Swisher’s counsel first questions whether the district 

court erred by imposing a two-level enhancement for possession 

of a firearm under U.S. Sentencing Guidelines Manual (“USSG”) 

§ 2D1.1(b)(1) (2012), based on testimony from the confidential 

informant at a co-defendant’s sentencing hearing. Appellate 
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courts have generally permitted a sentencing court to use 

testimony from other proceedings as long as a defendant has an 

opportunity to rebut the evidence. United States v. Blackwell, 

49 F.3d 1232, 1236-37 (7th Cir. 1995) (collecting cases). 

Because the presentence report set forth essentially the same 

facts to which the informant testified at Swisher’s codefendant’s sentencing hearing and Swisher had an opportunity to 

object to those facts, the district court did not err in relying 

on the informant’s testimony to impose the firearm enhancement. 

See USSG § 2D1.1 cmt. n.11(A); United States v. Slade, 631 F.3d 

185, 189 (4th Cir. 2011) (discussing firearm enhancement); see 

also United States v. Alexander, 714 F.3d 1085, 1092 (8th Cir.) 

(holding “that the trade of a firearm for drugs warrants [the 

§ 2D1.1(b)(1)] enhancement”) (internal quotation marks omitted), 

cert. denied, 134 S. Ct. 347 (2013).

Swisher also challenges the district court’s denial of 

an acceptance of responsibility adjustment under USSG § 3E1.1. 

In considering whether a defendant has accepted responsibility, 

a sentencing court may consider whether the defendant terminated

his criminal conduct. USSG § 3E1.1 cmt. n.1(b). Because 

Swisher consumed alcohol and possessed a controlled substance 

while on bond awaiting sentencing and therefore did not cease 

his criminal conduct, we conclude that the district court did 

not clearly err in denying the acceptance of responsibility 
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adjustment. See United States v. Jeffery, 631 F.3d 669, 678 

(4th Cir. 2011) (stating standard of review). 

In accordance with Anders, we have reviewed the entire 

record for any meritorious grounds for appeal and have found 

none. Accordingly, we affirm the district court’s judgment. 

This court requires that counsel inform Swisher, in writing, of 

his right to petition the Supreme Court of the United States for 

further review. If Swisher requests that a petition be filed, 

but counsel believes that such a petition would be frivolous, 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Swisher. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED