UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY RAY WELLS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:02-cr-00234)
Submitted: October 31, 2007 Decided: December 11, 2007
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John R. McGhee, Jr., KAY, CASTO & CHANEY, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, R. Booth Goodwin II, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Ray Wells, formerly a magistrate for Logan County,
West Virginia, was convicted of racketeering in violation of 18
U.S.C. § 1962(c) (2000) and sentenced to eighty-seven months in
prison, three years of supervised release, and restitution. On
appeal, we affirmed Wells’s conviction, vacated his sentence, and
remanded for resentencing in accordance with United States
v. Booker, 543 U.S. 220 (2005). On remand, the district court
sentenced Wells to eighty-seven months in prison, three years of
supervised release, and restitution. In this appeal, Wells seeks
to challenge his conviction again. He further contends his
sentence enhancements for both abusing a position of public trust
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.3
(2003) and for vulnerable victims pursuant to USSG § 3A1.1(b)(1)
constituted impermissible double counting, and he questions whether
the district court adequately considered the factors under 18
U.S.C. § 3553(a) (2000) when sentencing him to the high end of his
advisory guideline range. We affirm.
In Wells’s prior appeal, he contended the evidence was
insufficient for the jury to find him guilty of conduct
constituting a pattern of racketeering activity. We rejected
Wells’s arguments and decided the evidence was sufficient for the
jury to find a pattern of racketeering activity beyond a reasonable
doubt. In this appeal, Wells seeks to challenge whether the
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evidence was sufficient for the jury to find him guilty of conduct
constituting racketeering activity with respect to two of the three
predicate acts found by the jury. The Government contends the law
of the case doctrine precludes Wells from relitigating whether the
evidence was sufficient to sustain his conviction. We agree.
Because we necessarily decided the evidence was sufficient to find
Wells guilty of at least two acts of racketeering activity when
deciding it was sufficient to find him guilty of a pattern of
racketeering activity, our previous decision established the law of
the case. See Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66, 69
(4th Cir. 1988). Thus, we are precluded from addressing Wells’s
conviction-related argument unless (1) a subsequent trial or
proceeding in the district court produced substantially different
evidence, (2) controlling authority has since made a contrary
decision of law applicable to the issue, or (3) the prior decision
was clearly erroneous and would work manifest injustice. Because
we find none of these exceptional circumstances present in this
case, we do not address Wells’s argument.
Wells also challenges his sentence. We will affirm a
sentence imposed by the district court as long as it is within the
statutorily prescribed range and reasonable. United States
v. Hughes, 401 F.3d 540 (4th Cir. 2005). An error of law or fact
can render a sentence unreasonable. United States v. Green, 436
F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). We
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review a district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Hampton, 441 F.3d 284,
287 (4th Cir. 2006).
When sentencing a defendant, the district court must:
(1) properly calculate the guideline range; (2) determine whether
a sentence within that range serves the § 3553(a) factors; (3)
implement mandatory statutory limitations; and (4) explain its
reasons for selecting a sentence, especially a sentence outside the
range. Green, 436 F.3d at 455-56. A sentence within a properly
calculated guideline range is presumptively reasonable. Id. at
457; see Rita v. United States, 127 S. Ct. 2456 (2007) (upholding
presumption). This presumption can only be rebutted by showing the
sentence is unreasonable when measured against the § 3553(a)
factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th
Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).
While a district court must consider the § 3553(a)
factors and explain its sentence, it need not explicitly reference
§ 3553 or discuss every factor on the record, particularly when the
court imposes a sentence within the guideline range. United States
v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). One reason that a
sentence within an advisory range is presumptively reasonable is
that the most salient § 3553(a) factors are already incorporated
into guideline determinations. Id. at 342-43; see also Rita, 127
S. Ct. at 2467 (“where judge and Commission both determine that” a
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guideline sentence is appropriate, “that sentence likely reflects
the § 3553(a) factors”). A district court’s consideration of
pertinent factors may also be implicit in its ultimate ruling. See
United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).
The district court’s explanation should provide some
indication that it considered the § 3553(a) factors as to the
defendant and the potentially meritorious arguments raised by the
parties at sentencing. Montes-Pineda, 445 F.3d at 380. “[W]hen a
judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.” Rita,
127 S. Ct. at 2468. “Circumstances may well make clear that the
judge rests his decision upon the Commission’s own reasoning that
the Guidelines sentence is a proper sentence (in terms of § 3553(a)
and other congressional mandates) in the typical case, and that the
judge has found that the case before him is typical.” Id.
Wells contends that his enhancements for both abusing a
position of public trust and for vulnerable victims constituted
impermissible double counting. See United States v. Singh, 54 F.3d
1182, 1193 n.7 (4th Cir. 1995). He asserts it was his position as
magistrate that put him in contact with criminal defendants and
their family members, and there was no evidence he specifically
selected particularly vulnerable victims from among them. However,
the district court found he specifically selected, from among those
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criminal defendants and family members, particularly vulnerable
victims who were susceptible to his criminal conduct because they
were disadvantaged economically, uncounseled, and uneducated.
Because Wells does not challenge this finding, we conclude there
was no impermissible double counting.
Finally, Wells questions whether the district court
adequately considered the § 3553(a) factors in his case or gave the
guideline range undue weight when sentencing him to eighty-seven
months. We have reviewed the record and conclude the district
court adequately considered the § 3553(a) factors in Wells’s case
and reasonably determined a sentence at the high end of his
advisory guideline range was appropriate.
Accordingly, we affirm the district court’s judgment. 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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