Vacated by Supreme Court, January 7, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS ROMERO-CANDELARIA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-cr-00063-BR)
Submitted: March 30, 2007 Decided: May 3, 2007
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Romero-Candelaria appeals the fifty-seven-month
sentence he received on remand for the offense of illegal reentry
in violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 2006). When
Romero-Candelaria was first sentenced, the district court imposed
a variance sentence of twenty-four months to avoid a disparity
between Romero-Candelaria and defendants who participate in a
fast-track program in other districts. We vacated the sentence as
unreasonable, and remanded for resentencing. United States v.
Romero-Candelaria, 189 F. App’x 149 (4th Cir.) (No. 05-5185), cert.
denied, 127 S. Ct. 610 (2006). On remand, Romero-Candelaria asked
the court to reimpose the same sentence based on other sentencing
factors that he had presented at the first sentencing, pursuant to
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), as justification
for a below-guideline sentence. The district court declined to
impose a below-guideline sentence and instead sentenced
Romero-Candelaria at the bottom of the guideline range. We affirm.
Romero-Candelaria contends on appeal that the district
court imposed a sentence within the guideline range without
adequate consideration of the § 3553(a) factors because it felt
constrained to do so by our precedent, which accords a presumption
of reasonableness to a within-guideline sentence. We have
repeatedly held that a sentence imposed within a properly
calculated guideline range is presumed to be reasonable. See,
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e.g., United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006), petition for cert. filed, __ U.S.L.W. __ (U.S. July 21,
2006) (No. 06-5439); United States v. Johnson, 445 F.3d 339, 341-42
(4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006); United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). There is no evidence in the record to support
Romero-Candelaria’s contention that the court imposed a
within-guideline sentence because it felt constrained to do so.
The court had already considered and rejected at the first
sentencing hearing the grounds Romero-Candelaria urged on remand as
justification for a departure or variance. Although the court did
not specifically refer to the § 3553(a) factors at the resentencing
hearing, its reference to United States v. Booker, 543 U.S. 220
(2005), was an acknowledgment of the requirement that the
sentencing court must consider those factors, and indicates that,
as before, the court did not find any of the factors advanced by
Romero-Candelaria an adequate reason for a variance sentence. See
Johnson, 445 F.3d at 345 (district court need not discuss every
§ 3553(a) factor on the record, particularly when imposing sentence
within applicable guideline range).
Romero-Candelaria also argues that a within-guideline
sentence is not entitled to a presumption of reasonableness. He
cannot prevail on this issue because a panel may not overrule
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another panel. United States v. Chong, 285 F.3d 343, 346 (4th Cir.
2002).
We therefore affirm the sentence imposed by the district
court. 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
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