                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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