[DO NOT PUBLISH]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 32 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 F ederal 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 un reasonable. We affirm. We review the reasonableness of a sentence for an abuse of discretion. Ga ll 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. L evarity’s a rgument 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 departu re.” Fed. R. Crim. P. 32(h). Rule 32(h) applies to departures, not varia nces. 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 33 clarify that “[t]here’s been abso lutely 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 i mposed 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 no t 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 explain ed the nature and circumstances of Levarity’s offense, particularly the inherent danger of the offe nse as well as Levarity’s unique role as captain, and determined that an above

- range sentence was necessary to satisfy the goal s 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