United States v. Jason Swisher , 560 F. App'x 177 ( 2014 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 co-
defendant’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
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