United States v. Hugo Rodriguez Correa , 251 F. App'x 602 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 15, 2007
No. 07-11281 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00221-CR-ORL-28-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO RODRIGUEZ CORREA,
a.k.a. Hugo Correa,
a.k.a. Hugo Rodriguez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 15 ,2007)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Hugo Rodriguez-Correa appeals his 46-month sentence for illegal reentry of
a removed alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal,
Rodriguez-Correa raises five arguments: 1) that his Fifth and Sixth Amendment
rights were violated where the district court used his prior convictions that were
not alleged in the indictment or proven to a jury beyond a reasonable doubt to
enhance his sentence; 2) the absence of an “explicit and clearly defined fast-track”
program in the Middle District of Florida violates Rodriguez-Correa's equal
protection rights; 3) the U.S. Attorney’s office in the Middle District of Florida has
an unwritten fast-track program, and this violates his due process rights; 4) the
district court should consider the disparity associated with fast-track programs to
impose a reasonable sentence under 18 U.S.C. § 3553(a); and 5) his 46-month
sentence is unreasonable considering his history and characteristics and the nature
and circumstances of the offense.
First, Rodriguez-Correa argues that his Fifth and Sixth Amendment rights
were violated where the district court used his prior convictions that were not
alleged in the indictment or proven to a jury beyond a reasonable doubt to enhance
his sentence under both U.S.S.G. § 2L1.2(b)(1)(A) (adding 16 levels for having a
prior aggravated felony) and U.S.S.G. § 4A1.1 (by the addition of criminal history
points). He acknowledges that his argument is foreclosed by this Court’s
2
precedent, but raises the claim to preserve it for further appellate review.
In Almendarez-Torres v. United States, the Supreme Court held that a
defendant’s prior convictions used to enhance a sentence is not to be treated as an
element of the offense for constitutional purposes, and as a result the prior
conviction is not required to be alleged in the indictment. Almendarez-Torres v.
United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998).
We have held that, “unless and until the Supreme Court specifically overrules
Almendarez-Torres,” we will continue to follow it. United States v. Greer, 440
F.3d 1267, 1273 (11th Cir. 2006).
Second, Rodriguez-Correa argues that the absence of an “explicit and clearly
defined fast-track” program in the Middle District of Florida violates
Rodriguez-Correa's equal protection rights. Rodriguez-Correa urges this Court to
apply strict scrutiny to his equal protection challenge. Rodriguez-Correa contends
that the absence of such a program fails under strict scrutiny, and even rational
basis, analysis.
We have held that “no binding authority indicates that the distinction
between defendants sentenced in fast-track districts and defendants sentenced in
other districts involves a suspect classification or infringes on a fundamental
right.” United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006), cert.
3
denied, 127 S.Ct. 2085 (2007), and specifically held that “the absence of a
fast-track program in the judicial district where a defendant is sentenced does not
violate equal protection.” Id. at 1279-80.
Third, Rodriguez-Correa maintains that the U.S. Attorney’s Office in the
Middle District of Florida had a recently implemented “fast-track” or “early
disposition” program, but that the government is not releasing the written terms of
the program, which he contends violates his due process rights.
Determining whether Rodriguez-Correa was eligible for the program, and
thus would have received a reduction in his sentence through a plea bargain or a
government’s motion for downward departure, is a matter of prosecutorial
discretion. See United States v. Pickering, 178 F.3d 1168 , 1174 (11th Cir. 1999)
(stating that “entering into plea bargains is within the United States Attorney's
prosecutorial discretion”) (citation omitted), overruled on other grounds as stated
in United States v. Orrega, 363 F.3d 1093, 1098 n8 (11th Cir. 2004); see also,
United States v. Rankin, 572 F.2d 503, 505 (5th Cir. 1978) (stating that “there is no
constitutional right to plea bargain.”) (citing Weatherford v. Bursey, 429 U.S. 545,
561, 97 S. Ct. 837, 846, 51 L. Ed. 2d 30 (1977)); see also United States v. Orozco,
160 F.3d 1309,1316 (11th Cir. 1998) (stating that “[d]etermining whether a motion
for reduction of sentence will be filed is reserved to the government.”).
4
We review prosecutorial discretion to determine whether the decision of the
prosecutor was motivated by unconstitutional considerations. United States v.
Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (regarding government’s refusal to file
motion for substantial-assistance departure, and stating “the government cannot
exercise that power [of discretion], or fail to exercise that power, for an
unconstitutional motive.”) (citing Wade v. United States, 504 U.S. 181, 112 S. Ct.
1840, 1843, 118 L. Ed. 2d 524 (1992)).
In the instant case, Rodriguez-Correa has failed to introduce any evidence
showing that the United States Attorney’s office used an unconstitutional motive
when it denied his eligibility for the fast-track program. Thus, his argument fails.
Fourth, Rodriguez-Correa acknowledges that this Court’s precedent
forecloses his claim that the district court should consider the disparity associated
with fast-track programs to impose a reasonable sentence under 18 U.S.C.
§ 3553(a), but nevertheless raises the issue to preserve it for further review.
Finally, Rodriguez-Correa argues that his 46-month sentence is unreasonable
considering his history and characteristics and the nature and circumstances of the
offense.
We have held that “[i]n reviewing the ultimate sentence imposed by the
district court for reasonableness, we consider the final sentence, in its entirety, in
5
light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th
Cir. 2006). The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for the
sentence (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense, (B) to afford adequate
deterrence to criminal conduct, (C) to protect the public from further crimes of the
defendant, and (D) to provide the defendant with needed educational or vocational
training or medical care; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing Commission;
(6) the need to avoid unwarranted sentencing disparities; (7) and the need to
provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
The burden of proving that the sentence is unreasonable in light of the record
and these factors rests on the challenger. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). We have compared the sentence actually imposed to the
statutory maximum in the reasonableness review process. See United States v.
Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Recently, we noted in United
States v. Campbell,
We do not in this circuit presume reasonable a sentence
within the properly calculated Guidelines range. See
United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.
2006). Recently, however, the U.S. Supreme Court
6
upheld other circuits’ decisions affording such a
presumption, noting that a sentence, independently
calculated by the district court in accordance with
Booker, that falls within the properly calculated
Guidelines range “significantly increases the likelihood
that the sentence is a reasonable one.” Rita v. United
States, 551 U.S.___, [127 S.Ct. 2456, 2462-63, 168 L.Ed.
2d 203 (2007)].
Campbell, 491 F.3d 1306, 1313-1314 (11th Cir. 2007).
At the sentencing hearing, the district court stated that it had considered “the
advisory sentencing guidelines and all of the factors identified in” 18 U.S.C.
§ 3553(a)(1)-(7), and that the court found that “the sentence imposed is sufficient
but not greater than necessary to comply with the statutory purposes of
sentencing.” The district court heard statements from Rodriguez-Correa regarding
his family situation, his personal characteristics, his need for medical care, and his
lack of education. To the extent that Rodriguez-Correa argues that the district
court failed to give sufficient weight to his factors asserted in support of a
reasonable sentence, such as his personal circumstances, that decision is within the
district court’s discretion. United States v. Williams, 435 F.3d 1350, 1354-55
(11th Cir. 2006). Moreover, counsel for Rodriguez-Correa asked the district court
for a sentence lower than the guideline range, “or at a minimum at the low end of
the guidelines.” In fact, Rodriguez-Correa received a sentence at the low end of
the guideline range. In addition to being at the bottom of the advisory guideline
7
range, Rodriguez-Correa’s 46-month (3 years, 10 months) sentence is well below
the statutory maximum of 20 years’(240 months) imprisonment. 8 U.S.C.
§ 1326(b)(2). See United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006)
(concluding that 87-month sentence was reasonable for violating § 1326(b)(2)
because, among other things, the sentence was “almost one-third the length of the
twenty-year statutory maximum sentence”), cert. denied, 126 S.Ct. 2946 (2006).
Based on this record, Rodriguez-Correa has not met the burden of establishing the
unreasonableness of his sentence. Accordingly, because the district court
considered the factors outlined by § 3553(a), the sentence it imposed was
reasonable.
Upon review of the record, and upon consideration of the briefs of the
parties, we discern no reversible error.
AFFIRMED.
8