United States v. Rafael Paulino, 4th Cir. (2011)

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

Washington, D.C., for Appellant.
Anne M. Tompkins,
States Attorney, Melissa L. Rikard, Assistant United
Attorney, Charlotte, North Carolina, for Appellee.
SMITH,
United
States
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rafael
reentering
the
Antonio
United
Paulino
States
pled
after
guilty
being
to
unlawfully
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.
contending
that
the
district
Paulino appeals his sentence,
court
offense level and criminal history.

Manual 2L1.2, 4A1.1 (2010).
erred
in
determining
his
U.S. Sentencing Guidelines
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.
review
requires
procedural
and
38,
51
consideration
(2007).
of
both
This
the
reasonableness of a sentence.
appellate
substantive
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 Paulinos

2
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
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.
Paulinos
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
inconsistent
with
points.
the
However,
language
of
his
2L1.2
interpretation
cmt.
is
n.1(B((vii),
which incorporates the definition of sentence of imprisonment

as set out in 4A1.2 cmt. n.2 without limitation.
States
v.
Chavez-Diaz,
444
F.3d
1226-27
See United
(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).
presentence
September
This claim conflicts with information in the
report,
7,
1995,
which
and
shows
deported
that
Paulino
about
was
week
paroled
later.
sentence was not fully discharged until September 1996.

3
on
His
Paulino
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
documentation to support this claim.
never
produced
any
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.
Paulinos
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 defendants incarceration within the fifteenyear 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
4
was
actually
transferred
from
New
York
state
custody
to
INS
presented
no
custody.
As
previously
discussed,
Paulino
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.
(deportation
United States v. Chavez-Diaz, 444 F.3d at 1227

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 offenders 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 courts decision in United
5
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
remand
to
allow
him
second chance to argue that Perez-Pena should be reconsidered in

light
of
Gall
(2007).
overruled
and
Kimbrough
Paulino
questions
Perez-Pena,
and
v.
United
whether
notes
that
States,
552
Kimbrough
a
panel
of
U.S.
85
effectively
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. ReyesHernandez, 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
disparities
as
under
to
permit
3553(a));
consideration
United
States
v.
of
fast-track
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.
United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005).
See
Finally,
Paulino
asserts
that
the
Supreme
Courts
decision in Almendarez-Torres v. United States, 523 U.S. 224

(1998) (holding that prior convictions may be used to increase a
defendants
sentence
without
submitting
the
fact
conviction to a jury), should be reconsidered.
of
the
He recognizes
that this courts 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
district
facts
court.
and
materials
therefore
legal
before
We
affirm
dispense
contentions
the
court
the
with
sentence
oral
imposed
argument
are
adequately
and
argument
by
the
because
the
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED

United States v. Rafael Paulino, 4th Cir. (2011)

Uploaded by

Copyright:

Available Formats

United States v. Rafael Paulino, 4th Cir. (2011)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Rafael Paulino, 4th Cir. (2011)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

October 25, 2011

November 14, 2011

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Stuart Smith, LAW OFFICES OF GREGORY S.

Unpublished opinions are not binding precedent in this circuit.

aggravated felony, 8 U.S.C. 1326(a), (b)(2) (2006), without

Paulino appeals his sentence,

offense level and criminal history.

U.S. Sentencing Guidelines

He also asserts that the court

erred in not departing downward to avoid unwarranted sentencing

prior convictions not admitted by him or proven to a jury beyond

This court reviews a sentence for reasonableness under

Gall v. United States, 552

In 1993, Paulino was convicted as an adult in New York

When Paulino was sentenced for

the instant offense, the district court added, over Paulinos

objection, a 16-level increase in the offense level under USSG

sentence imposed is defined in Application Note 1(B)(vii) to

thus three years.

which incorporates the definition of sentence of imprisonment

Paulino also maintains that the enhancement was error because he

transferred to the custody of the Immigration and Naturalization

This claim conflicts with information in the

sentence was not fully discharged until September 1996.

discovery documents showed he was transferred to INS custody in

documentation to support this claim.

Therefore, the district

court was free to rely on the information in the presentence

allegation that the district court failed to resolve the issue

incarceration exceeding 13 months is counted if it was imposed

resulted in the defendants incarceration within the fifteenyear period.

See USSG 4A1.2(e)(1).

Paulino contends that he

was no longer incarcerated within the meaning of 4A1.1 after

He argues that the district court erred in

finding that INS custody qualified as custody for purposes of

He maintains that his case should be remanded with

documentation or other evidence in the district court to show

Nor has he presented

any such documentation on appeal, despite his reference, as in

Without any proof

that the information in the presentence report was inaccurate,

Further, as previously discussed, even

if Paulino was transferred to the INS before the fifteen-year

United States v. Chavez-Diaz, 444 F.3d at 1227

suspended sentence); United States v. Carrasco-Mateo, 389 F.3d

jurisdictions in his sentencing memorandum, although he conceded

States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006).

raise the issue at all in the sentencing hearing.

second chance to argue that Perez-Pena should be reconsidered in

Circuit so concluded in United States v. Rodriguez, 527 F.3d

decision in Almendarez-Torres v. United States, 523 U.S. 224

conviction to a jury), should be reconsidered.

that this courts precedent forecloses the issue, see United