                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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