UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUIS GOMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenest. Alexander Williams, Jr., District Judge.
(8:95-cr-00267-AW-14)
Submitted: November 30, 2006 Decided: January 26, 2007
Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert W. Biddle, NATHANS & BIDDLE, LLP, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Barbara S.
Skalla, Assistant United States Attorney, Greenest, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Gomez appeals his sentence imposed after
resentencing,1 on his conviction for conspiracy to distribute
cocaine and possession with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841, 846 (2000). Following the
resentencing hearing, the district court granted a “slight
deviation” from the guideline range of 360 months to life in
prison, and imposed a variance sentence of 340 months’
imprisonment. Gomez asserts that the sentence imposed by the
district court is unreasonable, due to the disparity in sentences
between Gomez and his co-defendants. Gomez argues that, pursuant
to 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), a variance
sentence of 240 months should have been imposed to bring his
sentence closer to the terms of imprisonment given to those co-
defendants who pleaded guilty. Additionally, Gomez challenges this
court’s prior rulings that sentences imposed within the guideline
range are presumptively reasonable. We affirm Gomez’s sentence.
After United States v. Booker, 543 U.S. 220, 261 (2005),
this court reviews a district court’s sentence “for
1
Following his trial, Gomez appealed his conviction and
sentence, which were affirmed by this court. See United States v.
Borda, 178 F.3d 1286 (4th Cir. 1999) (unpublished). Gomez
subsequently filed a motion to vacate, pursuant to 28 U.S.C. § 2255
(2000). The district court denied Gomez’s request for a new trial,
but granted his request for a new sentencing hearing, based on
ineffective assistance of counsel at sentencing. A resentencing
hearing was held on February 27, 2006.
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unreasonableness.” Id.; United States v. Hughes, 401 F.3d 540,
546-47 (4th Cir. 2005). Further, a sentencing court is no longer
bound by the range prescribed by the advisory Sentencing
Guidelines. United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006); Hughes, 401 F.3d at
546. In determining the sentence, however, courts are still
required to calculate and consider the guideline range, as well as
the factors set forth in § 3553(a). Green, 436 F.3d at 455-56. A
sentence imposed within the properly calculated guideline range is
presumptively reasonable. Id.; United States v. Johnson, 445 F.3d
339, 341-44 (4th Cir. 2006).
District courts are obligated to explain their sentences,
especially when a sentence is outside of the guideline range.
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006 ) (No.
06-5439). The explanation should indicate that the court
considered the § 3553(a) factors with respect to the defendant, and
that the court has considered the arguments raised by both parties.
Id. “[I]n determining whether there has been an adequate
explanation, [this court does] not evaluate a court’s sentencing
statements in a vacuum;” rather, “[t]he context surrounding a
district court’s explanation may imbue it with enough content for
[this court] to evaluate both whether the court considered the §
3553(a) factors and whether it did so properly.” Id. at 382.
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Gomez does not contest the district court’s calculation
of the sentencing guideline range in his case. However, Gomez
contends that the district court erred in its evaluation of the
§ 3553(a) factors by giving insufficient consideration to the lower
sentences given to his co-defendants, as well as his personal
history. Gomez compares his 340-month sentence to the sentences
imposed on those co-defendants who pleaded guilty, such as Rito
Cubides, who received a sentence of 188 months, Jesus Sarmiento,
who received a sentence of 168 months, and Alfonso Gomez, who
received a 170-month sentence.
Pursuant to § 3553(a)(6), the district court must
consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” See United States v. Clark, 434 F.3d 684, 686
(4th Cir. 2006). However, Gomez’s co-defendants were not found
guilty of comparable conduct and did not have similar records.
Cubides, Sarmiento, and Alfonso Gomez all pleaded guilty, while
Luis Gomez decided to go to trial. Cubides and Alfonso Gomez were
also held responsible for less cocaine than Luis Gomez, and none of
these co-defendants engaged in conduct that merited a three-level
enhancement for a leadership role. Additionally, Cubides and
Sarmiento were assigned to criminal history category I, while
Gomez had a criminal history category of II.
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The district court clearly explained its consideration of
the § 3553(a) factors and carefully considered the arguments made
by both parties at sentencing. The district court was also
cognizant of the sentences received by the other co-defendants who
went to trial, including Orlando Agudelo, who received 360 months’
incarceration, and Jose Borda and James Martinez, who received life
sentences. The district court determined that Gomez’s role was “a
little less pronounced, a little less significant” than the
“heavier players” who received longer sentences, and therefore
imposed a variance sentence of 340 months.
Gomez has not demonstrated that the district court was
unreasonable for refusing to give a 240-month sentence in this
case, which would amount to a one-third reduction from the lower
end of the advisory guideline range. See United States v. Hampton,
441 F.3d 284, 288 (4th Cir. 2006) (“The farther the court diverges
from the advisory guideline range, the more compelling the reasons
for the divergence must be.”). Gomez has not identified any
§ 3553(a) factor that would have compelled such a significantly
lower sentence, as the other co-defendants who proceeded to trial
received even higher sentences, while the reduced sentences granted
to those co-defendants who pleaded guilty were the result of
various elements that were not present in Gomez’s case. See United
States v. Brainard, 745 F.2d 320, 324 (4th Cir. 1984) (disparity in
sentences between defendant who stands trial and co-defendant who
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pleads guilty does not require reversal). We find that the
district court properly considered the § 3553(a) factors and the
arguments of the parties, and gave an adequate explanation of its
reasons for granting a sentence below the guideline range.2 See
Montes-Pineda, 445 F.3d at 380. Accordingly, we find that the
sentence imposed was reasonable.
Gomez also challenges this court’s prior rulings that
sentences imposed within the Guidelines are presumptively
reasonable, noting the alternative positions held by other
circuits. See e.g. United States v. Crosby, 397 F.3d 103, 115 (2d
Cir. 2005). However, a panel of this court may not overrule or
reconsider a decision of another panel. United States v. Prince-
Oyibo, 320 F.3d 494, 498 (4th Cir. 2003).
Accordingly, we affirm Gomez’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2
Gomez also raises his “family ties and personal history” as
another factor mandating a lower sentence, pursuant to
§ 3553(a)(1), and argues that the district court did not consider
this factor. While Gomez did submit a number of items to the
district court on this issue, he referred to this factor only
briefly at the sentencing hearing. Regardless, the record is clear
that the district court reviewed the § 3553(a) factors, and Gomez’s
assertion that the court did not “consider” his personal history is
speculative. See United States v. Eura, 440 F.3d 625, 634 (4th
Cir. 2006) (district court not required to discuss each § 3553(a)
factor on the record).
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