United States v. Jose Antonio Reyes-Rodriguez , 257 F. App'x 222 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 03, 2007
No. 06-10339 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20277-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO REYES-RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 3, 2007)
Before ANDERSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Jose Antonio Reyes-Rodriguez appeals his sentence of imprisonment for 51
months following a plea of guilty to unlawful reentry to the United States after
deportation. See 18 U.S.C. § 1326(a), (b)(2). Reyes-Rodriguez presents three
arguments on appeal. First, he argues that the government breached the plea
agreement by not recommending a sentence at the low end of the advisory
Sentencing Guidelines. Second, Reyes-Rodriguez argues that his sentence is
unreasonable. Third, Reyes-Rodriguez contends that the district court erred when
it enhanced his sentence based on facts not determined by a jury. We review each
argument in turn and affirm.
Reyes-Rodriguez argues that the government breached its promise in the
plea agreement to recommend a sentence at the low end of the Guidelines range.
Reyes-Rodriguez failed to object to the alleged breach of the plea agreement, after
being afforded an opportunity to object to the sentence, so we review for manifest
injustice. See United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
“[We] equate[] manifest injustice inquiry with review for plain error.” Id. Plain
error exists when there is (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). For an
error to affect substantial rights, it “must have affected the outcome of the district
court proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.
2005). If it is uncertain whether an error would have affected the outcome, the
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defendant’s appeal fails. Id. at 1300.
Even if the government breached its agreement to recommend a sentence at
the low end of the Guidelines range, there is no clear evidence in the record that
the district court would have imposed a shorter sentence had the recommendation
been made. The record is silent. Because Reyes-Rodriguez failed to establish that
the failure of the government to comply with the plea agreement affected his
substantial rights, the district court did not plainly err when it imposed a sentence
at the high end of the Guidelines range.
Reyes-Rodriguez next argues that his sentence is unreasonable. He contends
that the district court failed to give adequate consideration to his arguments for
mitigation and overemphasized his criminal history. We disagree.
We review a sentence for reasonableness. United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005). “Review for reasonableness is deferential.” Id. at 788.
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id. “When we review a sentence for reasonableness, we do not, as the
district court did, determine the exact sentence to be imposed.” Id. “We must
evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in section 3553(a).” Id. “[W]hen the district court
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imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.” Id.
Reyes-Rodriguez’s argument that his sentence is unreasonable fails. “The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court.” United States v. Williams, 456 F.3d 1353,
1363 (11th Cir. 2006). The transcript of the sentencing hearing establishes that the
district court sentenced Reyes-Rodriguez after consideration of his arguments in
favor of mitigation, the Guidelines, and the sentencing factors of section 3553(a).
The sentence Reyes-Rodriguez received, which was within the advisory Guidelines
range, was reasonable.
Reyes-Rodriguez next argues that the district court erred when it enhanced
his sentence based on a prior conviction that was not alleged in the indictment or
determined by the jury. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-Rodriguez
contends that the enhancement violated his rights under the Fifth and Sixth
Amendments because the district court, not the jury, determined that his prior
conviction was an aggravated felony and a crime of violence. As Reyes-Rodriguez
acknowledges, his arguments are foreclosed by binding precedent. See United
States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006); Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219 (1998).
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Reyes-Rodriguez’s sentence is
AFFIRMED.
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