UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 
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Borda, 178 F.3d 1286 (4th Cir. 1999) (unpublished).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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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 codefendants 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
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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
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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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. PrinceOyibo, 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