UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ALAN WINBURN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta C. Biggs,
District Judge. (1:15-cr-00098-LCB-3)
Submitted: January 10, 2017 Decided: January 12, 2017
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Alan Winburn pled guilty, pursuant to a plea
agreement, to conspiracy to distribute heroin, in violation of
21 U.S.C. §§ 841(b)(1)(C), 846 (2012). The district court found
that Winburn’s actions merited a sentencing enhancement for
maintaining a premises for the purpose of distributing illegal
drugs, pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(12) (2014). Winburn appeals, asserting that the
enhancement was not appropriate. Finding no error, we affirm.
“In considering a sentencing court’s application of the
guidelines, we review legal conclusions de novo and factual
findings for clear error.” United States v. White, 771 F.3d
225, 235 (4th Cir. 2014) (alteration and internal quotation
marks omitted). “[W]e can find clear error only if, on the
entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (alteration and
internal quotation marks omitted).
A two-level enhancement is warranted under USSG
§ 2D1.1(b)(12) when an individual “knowingly maintains a
premises (i.e. a building, room, or enclosure) for the purpose
of manufacturing or distributing a controlled substance,
including storage of a controlled substance for the purpose of
distribution.” USSG § 2D1.1 cmt. n.17. The commentary
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clarifies that “[m]anufacturing or distributing a controlled
substance need not be the sole purpose for which the premises
was maintained, but must be one of the defendant’s primary or
principal uses for the premises.” Id. As Winburn acknowledges,
it is possible for a personal residence to have a second primary
purpose of drug distribution. United States v. Sanchez, 710
F.3d 724, 729 (7th Cir.) (“[T]he enhancement clearly
contemplates that premises can have more than one principal use.
. . . [T]he proper inquiry is whether the drug transactions
were a second primary use of the premises or were instead merely
a collateral use.”), vacated on other grounds, 134 S. Ct. 146
(2013).
Winburn does not dispute that he maintained the subject
residence. Likewise, he does not dispute the evidence that he
purchased four to six grams of heroin daily for several months
prior to the search of his residence, that he sold heroin from
the residence at least three times in the two months prior to
his arrest, and that, upon his arrest at the residence, law
enforcement officers recovered eight bags of heroin from his
person and drug paraphernalia such as digital scales, razors,
and plastic baggies from the residence. However, Winburn
asserts that this evidence does not establish that drug
distribution was one of the primary purposes of the residence.
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We conclude that the district court did not clearly err in
finding by a preponderance of the evidence that these facts were
sufficient to merit application of the enhancement. See United
States v. Miller, 698 F.3d 699, 702-03, 706-07 (8th Cir. 2012)
(affirming enhancement where defendant “actively participat[ed]
in at least three controlled buys on the property, and she
admitted accepting payments that she knew were for
methamphetamine purchases on other occasions”).
Accordingly, we affirm the district court’s judgment. 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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