[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14845

Non-Argument Calendar

________________________

D.C. Docket No. 9:13-cr-80104-DTKH-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

KWAN LEVARITY, 

a.k.a. Joseph Kwan,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 6, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: 

Kwan Levarity appeals his sentence of imprisonment for 48 months 

following his guilty plea to one count of attempting to bring aliens into the United 

Case: 13-14845 Date Filed: 06/06/2014 Page: 1 of 3 
2

States for commercial advantage and private gain, 8 U.S.C. § 1324(a)(2)(B)(ii), 

and one count of reentry of a deported alien, id. § 1326(a). Levarity contends that

the district court erred when it failed to provide him notice of a potential departure 

as required by Federal Rule of Criminal Procedure 32(h) or to conduct the analysis 

for a departure required by Sentencing Guidelines, U.S.S.G. § 4A1.3. Levarity 

also contends that his sentence is substantively unreasonable. We affirm.

We review the reasonableness of a sentence for an abuse of discretion. Gall 

v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). A district court 

abuses its discretion if it applies an incorrect legal standard or makes findings of 

fact that are clearly erroneous. United States v. Wilk, 572 F.3d 1229, 1234 (11th 

Cir. 2009). 

The district court committed no procedural error in imposing Levarity’s 

sentence. Levarity’s argument that the district court erred by failing to provide

him notice before imposing an upward departure fails. Federal Rule of Criminal 

Procedure 32(h) requires that “before the [district] court may depart from the 

applicable sentencing range,” it must “give the parties reasonable notice that it is 

contemplating such a departure.” Fed. R. Crim. P. 32(h). Rule 32(h) applies to 

departures, not variances. Irizarry v. United States, 553 U.S. 708, 714, 128 S. Ct. 

2198, 2202 (2008). The district court imposed a variance, not a departure, in 

sentencing Levarity above his guideline range. Not only did the district court 

Case: 13-14845 Date Filed: 06/06/2014 Page: 2 of 3 
3

clarify that “[t]here’s been absolutely no departure in this case,” but it never cited a 

specific guideline departure provision and it based its rationale for imposing an 

upward variance entirely upon the statutory factors for sentencing, 18 U.S.C. § 

3553(a). Because the district court imposed a variance, not a departure, it was not 

required to provide notice under Rule 32(h) or to conduct the analysis for a 

departure under section 4A1.3 of the Guidelines. See Irizarry, 553 U.S. at 714, 

128 S. Ct. at 2202 (holding that Rule 32(h) does not apply to departures and 

defining “departure” as a term that “refers only to non-Guidelines sentences 

imposed under the framework set out in the Guidelines”) (emphasis added). 

And Levarity’s sentence is reasonable. The district court explained a 

heightened need for deterrence, as Levarity had attempted to commit the same 

offense in 2010, but received no punishment. The district court also explained the 

nature and circumstances of Levarity’s offense, particularly the inherent danger of 

the offense as well as Levarity’s unique role as captain, and determined that an 

above-range sentence was necessary to satisfy the goals of section 3553(a). 

Although his 48-month sentence represented a 12-month upward variance from his 

applicable guideline range, Levarity’s sentence was well below the 10-year 

statutory maximum sentence. The district court did not abuse its discretion.

AFFIRMED. 

Case: 13-14845 Date Filed: 06/06/2014 Page: 3 of 3