UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL ANTONIO PAULINO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00028-RLV-DSC-1)
Submitted: October 25, 2011 Decided: November 14, 2011
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant. Anne M. Tompkins, United
States Attorney, Melissa L. Rikard, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rafael Antonio Paulino pled guilty to unlawfully
reentering the United States after being convicted of an
aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2006), without
benefit of a plea agreement, and was sentenced to a term of
forty-six months of imprisonment. Paulino appeals his sentence,
contending that the district court erred in determining his
offense level and criminal history. U.S. Sentencing Guidelines
Manual §§ 2L1.2, 4A1.1 (2010). He also asserts that the court
erred in not departing downward to avoid unwarranted sentencing
disparity among similar defendants given reductions available in
fast track jurisdictions, and that it was error to consider
prior convictions not admitted by him or proven to a jury beyond
a reasonable doubt. We affirm.
This court reviews a sentence for reasonableness under
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id.
In 1993, Paulino was convicted as an adult in New York
state court of two separate felony drug trafficking offenses.
He was sentenced on November 1, 1993, to concurrent sentences of
1-to-3 years of imprisonment. When Paulino was sentenced for
the instant offense, the district court added, over Paulino’s
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objection, a 16-level increase in the offense level under USSG
§ 2L1.2(b)(1)(A)(i) because Paulino had been previously deported
after a conviction for a drug trafficking offense for which he
had received a sentence of more than 13 months. The term
“sentence imposed” is defined in Application Note 1(B)(vii) to
have the same meaning as “sentence of imprisonment” as that term
is defined in Application Note 2 and subsection (b) of § 4A1.2,
i.e., “a sentence of incarceration;” the term “refers to the
maximum sentence imposed.” Paulino’s “sentence imposed” was
thus three years.
Paulino argues that the “stated maximum” portion of
Application Note 2 to § 4A1.2 applies only to the determination
of criminal history points. However, his interpretation is
inconsistent with the language of § 2L1.2 cmt. n.1(B((vii),
which incorporates the definition of “sentence of imprisonment”
as set out in § 4A1.2 cmt. n.2 without limitation. See United
States v. Chavez-Diaz, 444 F.3d 1226-27 (10th Cir. 2006).
Paulino also maintains that the enhancement was error because he
was incarcerated for less than 13 months before he was
transferred to the custody of the Immigration and Naturalization
Service (INS). This claim conflicts with information in the
presentence report, which shows that Paulino was paroled on
September 7, 1995, and deported about a week later. His
sentence was not fully discharged until September 1996. Paulino
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states on appeal, as he did in the district court, that
discovery documents showed he was transferred to INS custody in
September 1994. However, he has never produced any
documentation to support this claim. Therefore, the district
court was free to rely on the information in the presentence
report, see United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990), and did not err in making the enhancement. Paulino’s
allegation that the district court failed to resolve the issue
is not borne out by the record.
Paulino further argues that his 1993 sentences were
improperly counted in his criminal history because they were
outside the applicable time period. Any prior sentence of
incarceration exceeding 13 months is counted if it was imposed
within the fifteen years preceding the instant offense, or
resulted in the defendant’s incarceration within the fifteen-
year period. See USSG § 4A1.2(e)(1). Paulino contends that he
was no longer incarcerated within the meaning of § 4A1.1 after
he was transferred to INS custody, which he maintains occurred
in September 1994. He argues that the district court erred in
finding that INS custody qualified as custody for purposes of
determining whether he was incarcerated during the applicable
time period. He maintains that his case should be remanded with
directions that the district court treat his INS custody as not
a part of his incarceration or, alternatively, determine when he
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was actually transferred from New York state custody to INS
custody.
As previously discussed, Paulino presented no
documentation or other evidence in the district court to show
that he was transferred to INS custody before September 7, 1995,
the date given in the presentence report. Nor has he presented
any such documentation on appeal, despite his reference, as in
the district court, to discovery documents that he alleges would
show the transfer date to be September 1994. Without any proof
that the information in the presentence report was inaccurate,
the district court was not required to inquire into the issue.
Terry, 916 F.2d at 162. Further, as previously discussed, even
if Paulino was transferred to the INS before the fifteen-year
period began, he remained incarcerated as a result of his 1993
convictions. United States v. Chavez-Diaz, 444 F.3d at 1227
(deportation did not transform 4-to-6-year sentence into
suspended sentence); United States v. Carrasco-Mateo, 389 F.3d
239, 244 (1st Cir. 2004) “An offender’s early release cannot
change the contours of the original sentence imposed after the
fact.”).
In the district court, Paulino raised the issue of a
variance based on sentencing disparity with fast track
jurisdictions in his sentencing memorandum, although he conceded
that the issue was foreclosed by this court’s decision in United
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States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006). He did not
raise the issue at all in the sentencing hearing.
On appeal, Paulino seeks a remand to allow him a
second chance to argue that Perez-Pena should be reconsidered in
light of Gall and Kimbrough v. United States, 552 U.S. 85
(2007). Paulino questions whether Kimbrough effectively
overruled Perez-Pena, and notes that a panel of the First
Circuit so concluded in United States v. Rodriguez, 527 F.3d
221, 225 (1st Cir. 2008) (holding that fast-track disparity not
barred from consideration under § 3553(a) and abrogating
contrary prior panel decision); see also United States v. Reyes-
Hernandez, 624 F.3d 405, 4416-17 (7th Cir. 2010) (same); but see
United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir.
2009) (holding that Kimbrough did not address disagreement with
Congressional policy, and so did not effectively overrule its
precedent so as to permit consideration of fast-track
disparities under § 3553(a)); United States v. Vega-Castillo,
540 F.3d 1235, 1239 (11th Cir. 2008) (same); United States v.
Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008) (same).
The decision in Rodriguez notwithstanding, Perez-Pena
remains the controlling law in this circuit, and in this circuit
a panel may not overrule the decision of a prior panel. See
United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005).
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Finally, Paulino asserts that the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224
(1998) (holding that prior convictions may be used to increase a
defendant’s sentence without submitting the fact of the
conviction to a jury), should be reconsidered. He recognizes
that this court’s precedent forecloses the issue, see United
States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005), but seeks to
preserve the issue for later review. Under the current law of
this circuit, the issue is meritless.
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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