US v. James Winburn


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00098-LCB-3 Copies to all parties and the district court/agency. [1000002608].. [15-4655]

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Appeal: 15-4655 Doc: 43 Filed: 01/12/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4655 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ALAN WINBURN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00098-LCB-3) Submitted: January 10, 2017 Decided: January 12, 2017 Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4655 Doc: 43 Filed: 01/12/2017 Pg: 2 of 4 PER CURIAM: James Alan Winburn pled guilty, pursuant to a plea agreement, to conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). that Winburn’s actions merited a The district court found sentencing enhancement for maintaining a premises for the purpose of distributing illegal drugs, pursuant § 2D1.1(b)(12) to U.S. (2014). Sentencing Winburn appeals, enhancement was not appropriate. “In considering guidelines, we a review findings for clear error.” 225, 235 (4th Cir. marks omitted). entire 2014) asserting Manual that the Finding no error, we affirm. sentencing legal Guidelines court’s conclusions application de novo and of the factual United States v. White, 771 F.3d (alteration and internal quotation “[W]e can find clear error only if, on the evidence, we are left with the definite and firm conviction that a mistake has been committed.” United States v. Manigan, (alteration 592 F.3d 621, 631 (4th Cir. 2010) and internal quotation marks omitted). A two-level § 2D1.1(b)(12) enhancement when an is warranted under individual “knowingly USSG maintains a premises (i.e. a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution.” USSG § 2D1.1 cmt. 2 n.17. The commentary Appeal: 15-4655 Doc: 43 clarifies Filed: 01/12/2017 that Pg: 3 of 4 “[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises.” Id. As Winburn acknowledges, it is possible for a personal residence to have a second primary purpose of drug distribution. United States v. Sanchez, 710 F.3d (“[T]he 724, 729 (7th Cir.) enhancement clearly contemplates that premises can have more than one principal use. . . . [T]he proper inquiry is whether the drug transactions were a second primary use of the premises or were instead merely a collateral use.”), vacated on other grounds, 134 S. Ct. 146 (2013). Winburn does not dispute that he maintained the subject residence. Likewise, he does not dispute the evidence that he purchased four to six grams of heroin daily for several months prior to the search of his residence, that he sold heroin from the residence at least three times in the two months prior to his arrest, and that, upon his arrest at the residence, law enforcement officers recovered eight bags of heroin from his person and drug paraphernalia such as digital scales, razors, and plastic asserts that baggies this from the evidence residence. does not However, establish Winburn that drug distribution was one of the primary purposes of the residence. 3 Appeal: 15-4655 Doc: 43 Filed: 01/12/2017 Pg: 4 of 4 We conclude that the district court did not clearly err in finding by a preponderance of the evidence that these facts were sufficient to merit application of the enhancement. See United States v. Miller, 698 F.3d 699, 702-03, 706-07 (8th Cir. 2012) (affirming enhancement where defendant “actively participat[ed] in at least admitted three accepting controlled buys payments on that the property, she knew and were she for methamphetamine purchases on other occasions”). Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4

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