UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4134



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANNY RAY WELLS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:02-cr-00234)


Submitted:   October 31, 2007          Decided:     December 11, 2007


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John R. McGhee, Jr., KAY, CASTO & CHANEY, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, R. Booth Goodwin II, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Danny Ray Wells, formerly a magistrate for Logan County,

West Virginia, was convicted of racketeering in violation of 18

U.S.C. § 1962(c) (2000) and sentenced to eighty-seven months in

prison, three years of supervised release, and restitution.                     On

appeal, we affirmed Wells’s conviction, vacated his sentence, and

remanded   for   resentencing       in    accordance     with     United    States

v. Booker, 

(2005).            On remand, the district court

sentenced Wells to eighty-seven months in prison, three years of

supervised release, and restitution.          In this appeal, Wells seeks

to   challenge   his   conviction    again.       He    further    contends    his

sentence enhancements for both abusing a position of public trust

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.3

(2003) and for vulnerable victims pursuant to USSG § 3A1.1(b)(1)

constituted impermissible double counting, and he questions whether

the district court adequately considered the factors under 18

U.S.C. § 3553(a) (2000) when sentencing him to the high end of his

advisory guideline range.      We affirm.

           In Wells’s prior appeal, he contended the evidence was

insufficient     for   the   jury    to    find   him     guilty    of     conduct

constituting a pattern of racketeering activity.                    We rejected

Wells’s arguments and decided the evidence was sufficient for the

jury to find a pattern of racketeering activity beyond a reasonable

doubt.     In this appeal, Wells seeks to challenge whether the


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evidence was sufficient for the jury to find him guilty of conduct

constituting racketeering activity with respect to two of the three

predicate acts found by the jury.      The Government contends the law

of the case doctrine precludes Wells from relitigating whether the

evidence was sufficient to sustain his conviction.                We agree.

Because we necessarily decided the evidence was sufficient to find

Wells guilty of at least two acts of racketeering activity when

deciding it was sufficient to find him guilty of a pattern of

racketeering activity, our previous decision established the law of

the case.   See Sejman v. Warner-Lambert Co., Inc., 

, 69

(4th Cir. 1988).     Thus, we are precluded from addressing Wells’s

conviction-related    argument   unless    (1)   a   subsequent   trial   or

proceeding in the district court produced substantially different

evidence, (2) controlling authority has since made a contrary

decision of law applicable to the issue, or (3) the prior decision

was clearly erroneous and would work manifest injustice.            Because

we find none of these exceptional circumstances present in this

case, we do not address Wells’s argument.

            Wells also challenges his sentence.          We will affirm a

sentence imposed by the district court as long as it is within the

statutorily   prescribed   range    and    reasonable.     United    States

v. Hughes, 

(4th Cir. 2005).         An error of law or fact

can render a sentence unreasonable.         United States v. Green, 

, 456 (4th Cir.), cert. denied, 

(2006).           We


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review a district court’s factual findings for clear error and its

legal conclusions de novo. United States v. Hampton, 

,

287 (4th Cir. 2006).

            When sentencing a defendant, the district court must:

(1) properly calculate the guideline range; (2) determine whether

a sentence within that range serves the § 3553(a) factors; (3)

implement mandatory statutory limitations; and (4) explain its

reasons for selecting a sentence, especially a sentence outside the

range.     

.    A sentence within a properly

calculated guideline range is presumptively reasonable.       

Rita v. United States, 

(2007) (upholding

presumption). This presumption can only be rebutted by showing the

sentence is unreasonable when measured against the § 3553(a)

factors.     United States v. Montes-Pineda, 

, 379 (4th

Cir. 2006), cert. denied, 

(2007).

            While a district court must consider the § 3553(a)

factors and explain its sentence, it need not explicitly reference

§ 3553 or discuss every factor on the record, particularly when the

court imposes a sentence within the guideline range. United States

v. Johnson, 

, 345 (4th Cir. 2006).      One reason that a

sentence within an advisory range is presumptively reasonable is

that the most salient § 3553(a) factors are already incorporated

into guideline determinations.    

also 

(“where judge and Commission both determine that” a


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guideline sentence is appropriate, “that sentence likely reflects

the § 3553(a) factors”).     A district court’s consideration of

pertinent factors may also be implicit in its ultimate ruling. See

United States v. Johnson, 

, 119 (4th Cir. 1998); United

States v. Davis, 

, 642 (4th Cir. 1995).

          The district court’s explanation should provide some

indication that it considered the § 3553(a) factors as to the

defendant and the potentially meritorious arguments raised by the

parties at sentencing.   

.    “[W]hen a

judge decides simply to apply the Guidelines to a particular case,

doing so will not necessarily require lengthy explanation.”      

.   “Circumstances may well make clear that the

judge rests his decision upon the Commission’s own reasoning that

the Guidelines sentence is a proper sentence (in terms of § 3553(a)

and other congressional mandates) in the typical case, and that the

judge has found that the case before him is typical.”      

his enhancements for both abusing a

position of public trust and for vulnerable victims constituted

impermissible double counting. See United States v. Singh, 

, 1193 n.7 (4th Cir. 1995).   He asserts it was his position as

magistrate that put him in contact with criminal defendants and

their family members, and there was no evidence he specifically

selected particularly vulnerable victims from among them. However,

the district court found he specifically selected, from among those


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criminal defendants and family members, particularly vulnerable

victims who were susceptible to his criminal conduct because they

were   disadvantaged   economically,       uncounseled,     and   uneducated.

Because Wells does not challenge this finding, we conclude there

was no impermissible double counting.

           Finally,    Wells   questions    whether   the    district   court

adequately considered the § 3553(a) factors in his case or gave the

guideline range undue weight when sentencing him to eighty-seven

months.   We have reviewed the record and conclude the district

court adequately considered the § 3553(a) factors in Wells’s case

and reasonably determined a sentence at the high end of his

advisory guideline range was appropriate.

           Accordingly, we affirm the district court’s judgment. 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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