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


                                                              [DO NOT PUBLISH]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
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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


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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.




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