US v. James Winburn

Filing

UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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clarifies

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that

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“[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.

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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

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