                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1224
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                DAVIONE WARREN,
                                         Appellant
                              _______________________

                           On Appeal from the District Court
                             for the District of New Jersey
                          D.C. Criminal No. 2-12-cr-00398-001
                            (Honorable Susan D. Wigenton)
                                    ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 12, 2013

           Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges

                          (Opinion Filed: November 14, 2013)

                                  _________________

                              OPINION OF THE COURT
                                 _________________


SCIRICA, Circuit Judge.

      Defendant Davione Warren pleaded guilty to possession of a weapon in

furtherance of a drug trafficking crime and was sentenced to a prison term of eighty-four
months. He appeals his sentence, which was above the advisory sentence under the

United States Sentencing Guidelines (“the Guidelines”). We will affirm.

                                            I.

      On January 11, 2012, the East Orange Police Department responded to calls

reporting a weapon had been discharged. A witness at the scene described seeing a

shooter flee in a white four-door vehicle.       The next day, a confidential informant

confirmed Warren was the shooter and had guns in his apartment and car. Police officers

established surveillance around Warren’s apartment, and when they saw a man and

woman drive away in a white four-door vehicle, they followed the vehicle and conducted

a stop. The officers found marijuana and twenty bricks of heroin in the vehicle and

placed Warren under arrest. Warren later consented to a search of his home, where

officers found eighteen bricks of heroin, two glassine envelopes of heroin, three

handguns, and $780 in cash.

      A federal grand jury returned a three-count indictment against Warren. Count One

charged Warren with possession with intent to distribute heroin, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). Count Two charged him with possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count Three

charged Warren with being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g).

      On October 1, 2012, Warren pleaded guilty to Count Two of the indictment

pursuant to a plea agreement, and the Government agreed to move, at the time of

Warren’s sentencing, for dismissal of Counts One and Three.          The plea agreement

                                            2
stipulated a violation of 18 U.S.C. § 924(c) carries a mandatory minimum sentence of

sixty months and the applicable Guidelines sentence is the minimum term of

imprisonment set by statute. The agreement also stated Warren and the Government

considered the Guidelines sentence to be reasonable.

       Prior to sentencing, the United States Probation Office prepared a Presentence

Investigation Report (“PSR”), which noted the Guidelines sentence of sixty months and

the parties’ agreement with that sentence. In addition, the PSR described Warren’s

extensive criminal history as a juvenile, including several criminal adjudications and

arrests, as well as one prior conviction as an adult.

       On January 11, 2013, the District Court sentenced Warren to a prison term of

eighty-four months. At the start of the hearing, the court noted its review of the PSR and

the parties’ submissions, and the parties expressed no objections to the PSR. Neither

party moved for a departure from the Guidelines sentence. The court then heard from

Warren’s defense counsel and the Government, each of whom argued for a sentence of

sixty months.

       Afterward, the District Court analyzed the sentencing factors it was bound to

consider under 18 U.S.C. § 3553(a) and concluded a sixty-month sentence would not be

appropriate. The court paid particular attention to Warren’s long criminal record as a

juvenile and prior adult conviction, the seriousness of his offense, and the need for the

sentence imposed to provide just punishment, afford deterrence, and avoid sentencing

disparities. Illustrating the seriousness of the offense, the court engaged in a hypothetical

calculation of Warren’s Guidelines sentence considering Count One of the indictment.

                                              3
The court found the advisory sentence in that scenario to be thirty to thirty-seven months,

with an additional sixty months for Warren’s violation of 18 U.S.C. § 924(c). After a

thorough analysis of the sentencing factors under § 3553(a), the District Court stated its

intention to vary upward from the Guidelines sentence and imposed a term of

imprisonment of eighty-four months. This timely appeal followed.1

                                            II.

       Warren challenges his sentence under Rule 32(h) of the Federal Rules of Criminal

Procedure, which requires a sentencing court to give “reasonable notice” that it is

contemplating a departure if the ground for departure is not identified in the PSR or a

party’s prehearing submission. Fed. R. Crim. P. 32(h). He contends the District Court

erred by failing to give advance notice of its intent to depart from the Guidelines sentence

of sixty months. Yet Warren acknowledges no legal error occurred if the court’s decision

to impose a more severe sentence constituted a variance based on the factors enumerated

in 18 U.S.C. § 3553(a), rather than a departure under the Sentencing Guidelines. 2 Indeed,

the United States Supreme Court has held the notice protections of Rule 32(h) do not

extend to variances under § 3553(a). Irizarry v. United States, 553 U.S. 708, 714-16

(2008); see also United States v. Vampire Nation, 451 F.3d 189, 197 (3d Cir. 2006).

       Because the record reveals Warren made no objection to his sentence, we review

for plain error. See Vampire Nation, 451 F.3d at 195. Under this standard, relief may be

1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. §§ 1291 and 3742(a).
2
  A departure is a divergence from the Guidelines range “for reasons contemplated by the
Guidelines themselves,” whereas a variance is “given in the exercise of a district court’s
discretion.” United States v. Jackson, 467 F.3d 834, 837 n.2 (3d Cir. 2006).
                                             4
granted only if (1) an error was committed, (2) the error was plain, meaning it was clear

and obvious, and (3) the error affected Warren’s substantial rights. United States v.

Knight, 266 F.3d 203, 206 (3d Cir. 2001) (citation omitted).

       Warren cannot meet this standard.        Where a court’s divergence from the

Guidelines sentence is based on its discretion under § 3553(a) and not on a departure

from the advisory Guidelines range, a defendant is “not entitled to advance notice under

Rule 32(h) of the District Court’s intent to vary its sentence.” Vampire Nation, 451 F.3d

at 197. The record in this case is unambiguous—the District Court imposed a sentence

greater than sixty months not because of a ground for departure in the Guidelines but

because of its analysis of the § 3553(a) sentencing factors. In particular, the court

concluded a sixty-month sentence would be inadequate considering Warren’s extensive

criminal history as a juvenile, his prior adult conviction, the seriousness of his offense,

and the need to provide adequate deterrence to criminal conduct and avoid sentencing

disparities. See 18 U.S.C. § 3553(a).

       Despite the District Court’s explicit reliance on § 3553(a) to vary from the

Guidelines sentence, Warren argues the court’s basis for imposing a more severe

sentence was its hypothetical calculation of a Guidelines sentence for his heroin

possession charge. But that calculation was not a Guidelines departure. Rather, the court

engaged in the calculation to explain why a prison term of sixty months would not

“accurately reflect[] what transpired here.” App. II at 19. Applying § 3553(a), the court

was considering “the need for the sentence imposed . . . to reflect the seriousness of the

offense.” 18 U.S.C. § 3553(a)(2)(A).

                                            5
       Because the District Court did not make a departure under the Sentencing

Guidelines, Rule 32(h) has no application to this case, and the court’s variance under

§ 3553(a) was without error.

                                         III.

       For the foregoing reasons, we will affirm the judgment of conviction and

sentence. 3




3
  We will also grant Warren’s motion to seal Volume II of his Appendix, as it contains
his Presentence Investigation Report.
                                          6
