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11

- 4841

- cr
United States v. Rumble

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 O RDER ” ). A PARTY CITING TO 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 1 the Thurgood Marshall United States Courthouse, 40 Foley S quare, in the City of New 2 York, on the 8 th d ay of April , two thousand thirteen. 3

4

PRESENT: BARRINGTON D. PARKER

, 5
RAYMOND J. LOHIER, JR.

, 6
SUSAN L. CARNEY

, 7 Circuit Judges. 8

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10 UNITED STATES OF AMERICA, 11

12 Appellee

, 13

14

v. No. 11

- 4841

- cr 15

16 JOHN RUMBLE

, 17

18 Defendant

- Appellant. 19 20

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22 FOR APPELLANT: J EREMY G UTMAN

, New York

, NY. 23

24 FOR APPELLEE: E LIZABETH S. R IKER

, Assistant United States Attorney 25 ( Ransom P. Reynolds , Assistant United States 26 Attorney, on the brief ), for Richard S. Hartun ian, 27 United States Attorney for the Northern District of New 28 York, Syracuse, NY. 292

Appeal from a judgment of the United States District Court for the Northern District 30

of New York (David N. Hurd, Judge ). 31

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 32

AND DECREED that the judgment of the District Court is AFFIRMED. 33

Defendant

- a ppellant John Rumble appeals from a judgment of conviction entered in 34

2011, following a jury trial

. The jury found Rumble guilty on six firearms

- related counts 35

charged i n the second superseding indictment, but was unable to reach a verdict on the 36

seventh count, which charged Rum ble with threatening to kill a F ederal agent in retaliation 37

for the performance of the agent’s official duties

, in violation of 18 U.S.C. § 115 (a)(1)(B) 38

(“Count Seven”) . After determining that Ru mble’s Sentencing Guidelines range was 121 39

to 151 months ’ imprisonment , the District Court sentenced Rumble to a term of 40

imprisonment of 121 months. On appeal, Rumble argues (1) that the District Court 41

admitted at trial prejudicial evidence of Rumble ’s alleged threats against the F ederal agent, 42

requiring a new trial, and (2) that the District Court erred in calculating Rumble’s base 43

offense level under the Guidelines. We assume the parties ’ familiarity with the facts and 44

record of the prior proceedings, to which we refer only as necessary to explain our decision 45

to affirm. 46

1. The Evidence Relating to the Alleged Threats 47

Rumble argues that he should receive a new trial because the District Court 48

admitte d prejudicial evidence, some of it hearsay, relating to Count Seven. Most of the 49

evidence was admitted without objection , and our review is therefore for plain error. 50

However, Rumble did object to one question during the testimony of the agent who was 51

th reatened: D uring the agent’s direct examination, the Government asked the agent if the 52

threat “affected you and your family,” to which the agent replied, “[i]t has.” Where a 53

defendant preserves a challenge to a district court’s evidentiary ruling, we review the 54

ruling for abuse of discretion. United States v. Abreu , 342 F.3d 183, 190 (2d Cir. 2003)

. 553

“Additionally, we will not order a new trial because of an erroneous evidentiary ruling if 56

we conclude that the error was harmless.” Id. 57

As an initial matter, the District Court did not abuse its discretion by admitting 58

evidence about the effect of the alleged threats on the agent and his family. The effect of a 59

statement on its subject may be “highly relevant ” to the question of whether o r not the 60

statement is a threat, United States v. Malik

, 16 F.3d 45, 49 ( 2d Cir. 1994)

, and the agent’s 61

simple response, “ [i]t has,” was not inflammatory. Moreover , b ecause the jury did not 62

convict Rumble of Count Seven

, we cannot say that any of the evidence that Rumble now 63

challenges

— all of which pertained to Count Seven

— prejudiced the jury such that a new 64

trial is required. See United States v. Diaz

, 922 F.2d 998, 1007

- 08 ( 2d Cir. 1990)

. 65

Rumble argues that , in the absence of the challenged eviden ce relating to Count 66

Seven, he might not have been convicted on the other six coun ts, which related to making 67

false statements in federal firearms licensing documents, the sale of firearms to a drug user

, 68

and the possession of firearms by a drug user. We discern no basis in the record for such 69

an argument. B ecause the evidence with respect to those counts was strong separate and 70

apart from the evidence relating to Count Seven , we conclude that the claimed evidentiary 71

errors were in any event harmless. 72

2. Sentencing 73

Rumble also argues that the District Court erred in calculating his base offense level 74

during sentencing. Rumble argues that the District Court should not have applied 75

U.S.S.G. § 2K2.1(a)(4)(B), which mandates a base offense level of 20 if

, as applicable 76

here

, “ the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a 77

large capacity magazine . . . .” The Application Note for § 2K2.1(a)(4)(B) provides as 78

follows: 79

[A] “ semiautomatic firearm that is capable of acce pting a large capacity 80 magazine” means a semiautomatic firearm that has the ability to fire many 81 rounds without reloading because at the time of the offense (A) the firearm 824

had attached to it a magazine or similar device that could accept more than 15 83

roun ds of ammunition; or (B) a magazine or similar device that could accept 84 more than 15 rounds of ammunition was in close proximity to the firearm. 85

U.S.S.G. § 2K2.1 cmt. n. 2. Rumble argues that the Government did not establish by a 86

preponderance of the evi dence that any of the firearms that he sold, or that were found at 87

his home, had large capacity magazines either attached to them or in close proximity. 88

This argument lacks merit. At trial, Scott Bentley, who illegally bought an AK

- 47 89

from Rumble, testi fied t hat Rumble gave him twenty

- and thirty

- round magazines along 90

with the AK

- 47. Moreover , at sentencing, the Government submitted an affidavit from a 91

New York State Police supervisor of the unit that executed the search warrant on Rumble’s 92

residence. In his affidavit , the supervisor, who had inventoried all of the firearms take n 93

from Rumble’s residence, explained that, according to the inventory, at leas t 38 94

semi automatic weapons with attached magazines capable of accepting more than 15 95

rounds of ammunition were found in Rumble’s home, and that 36 of those were loaded. 96

Based on both the affidavit and Bentley’s trial testimony

, the District Court did not err in 97

applying U.S.S.G. § 2K2.1(a)(4)(B). 98

We have considered all of Rumble = s remaining arguments and conclude that they 99

are without merit. For the foregoing reasons, the judgment of the District Court is 100

AFFIRMED. 101

FOR THE COURT: 102

Catherine O = Hagan Wolfe, Clerk o f Court 103

104