UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 

Vacated by Supreme Court, January 7, 2008
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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