UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4484
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS STINSON, a/k/a Daz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00400-FDW-1)
Submitted: February 27, 2014 Decided: March 7, 2014
Before DUNCAN and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Darius Stinson pled
guilty to distribution of cocaine base and aiding and abetting.
The district court sentenced him to 160 months’ imprisonment.
Stinson’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that, in counsel’s
view, there are no meritorious issues for appeal, but
questioning whether the district court erred by upwardly
departing at sentencing without giving notice pursuant to Fed.
R. Crim. P. 32(h) and whether the district court erred by
enhancing Stinson’s sentence for maintaining a residence for the
purpose of manufacturing and distributing controlled substances.
Although advised of his right to file a pro se supplemental
brief, Stinson has not done so. Finding no reversible error, we
affirm.
Stinson first contends that the district court failed
to provide notice that it was considering an upward departure
from the Guidelines range. After sustaining Stinson’s objection
to the inclusion of drug quantities not specified in the
indictment, the district court informed the parties that it was
considering an upward variance based on Stinson’s criminal
history. In determining that a 70 to 87 month sentence was
insufficient and that a 160-month sentence was appropriate, the
court imposed a variance sentence, not an upward departure.
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Thus, no notice was required under Rule 32(h). See Irizarry v.
United States, 553 U.S. 708 (2008) (holding that variance does
not require prior notice).
Stinson next contends that the sentencing court erred
by applying the two-level enhancement for maintaining a dwelling
for the manufacture and distribution of controlled substances.
Although Stinson objected to the enhancement as too remote in
time from the May 2011 offense of conviction, he failed to
present any evidence to show that his maintaining the second
apartment was not for use in his drug offenses related to the
offense conduct. Notably, Stinson admitted that he had the
apartment in 2008 for the purpose of cooking and selling crack.
He admitted that he continued to cook and sell drugs in 2010.
The offenses with which he was charged occurred in March and May
2011. Although Stinson’s counsel asserted at sentencing that
the apartment had not been used for over four years, he failed
to present any evidence to refute the application of this
enhancement. We find no clear error in the district court’s
application of this enhancement. See United States v. Strieper,
666 F.3d 288, 292 (4th Cir. 2012) (providing standard).
We have reviewed Stinson’s sentence and conclude that
the sentence imposed was reasonable, see Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Llamas, 599 F.3d 381,
387 (4th Cir. 2010), and that the district court did not abuse
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its discretion in imposing the chosen sentence. See Gall, 552
U.S. at 41; United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007) (applying appellate presumption of reasonableness to
within-Guidelines sentence).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Stinson’s conviction and sentence.
This court requires that counsel inform Stinson, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Stinson requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Stinson. 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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